Tripp v. Wade

Citations

• 82 Fla. 325
• 89 So. 870
• 1921 Fla. LEXIS 472

Syllabus

<p>1. Striking a pleading is a severe remedy and should be resorted to only in cases palpably requiring it for the proper administration of justice.</p> <p>2. Even though there may be technical error in an order striking a pleading, such error will not require a reversal of the judgment if it affirmatively appears that the party whose pleading was stricken was not harmed thereby.</p> <p>3. Technical error in striking a pleading will not be held to be harmful if it affirmatively appears that the party whose pleading was stricken was permitted to submit his case under other pleadings that gave him all the benefits that he would have had if such pleading had not been stricken.</p> <p>4. Special pleas tendering an issue covered by a plea of the general issue in a case in which such latter plea is applicable may be stricken upon motion of plaintiff or by the court of its own motion.</p> <p>5. Where a contract of sale of personal property requires the vendor to deliver the property sold at some fixed time and place where payment of the purchase price therefor is to be made on delivery, title will not pass until delivery and payment are made in accordance with the terms of the contract.</p> <p>6. The rule is that where in the sale of personal property anything remains to be done before the sale is considered complete, whether by vendor or vendee, as between the parties themselves the title to the property does not pass. Held: Applying this rule, that where animals are sold according to weight and under the contract of sale the weight is to be ascertained at some later fixed date upon delivery, title will not pass until the weight is ascertained, payment therefor made and the animals delivered.</p> <p>7. A plea to. a declaration on a contract which attempts to set up a defense to the action that the contract entered into was máterially different from, the contract sued on amounts in legal effect to no more than- a denial of the contract asserted which is available as a defe