Florida Reports Volume 53

Florida Reports Volume 53

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1907 edition. Excerpt: ...but the terms of the contract would be the only controlling guide. Another clause of the defendant's 4th plea. which alleges damages accruing to the defendant's nursery stock from the spreading thereto of scale insects alleged to have been tortiously allowed by the plaintifl? to accumulate on his grove trees adjacent thereto, and attempting to set-ofl' or recoup such alleged damages against any injury to the plaintiff from the alleged breaches of said contract, was also stricken by the court and is complained of in the 2nd assignment of error. There was no error here. The matter so stricken was not responsive to the declaration, and alleged dam age growing, not out of breach of any contract, but out of tort. Unliquidated damages resulting from a tort cannot be made available as a set-off in an action for breach of a written contract. Hall v. Penny, 13 Fla. 621. A motion to strike the objectionable features of the plea was the proper way to remedy it, as the plea otherwise tendered a proper defense; a demurrer could not reach simply the defective parts of the plea, but would stand or fall as the plea was good or bad as a whole, a demurrer goes to the plea as a whole. Muller v. Ocala Found. & Mach. Works, 49 Fla. 189, 38 South. Rep. 64; State ear-rel. Kittel v. Trustees I. I. Fund, 47 Fla. 307, 35 South. Rep. 986; Hooker v. Forrester & Burton, decided here at present term. During the trial the defendant filed a fifth plea in which he particularly describes a portion of the land containing ten acres included in the contract and alleges that the same at the time said contract of lease was entered into and at the time said suit was brought was owned individually by a third party and that the plaintiff by his suit...show more

Product details

  • Paperback | 344 pages
  • 189 x 246 x 18mm | 617g
  • Rarebooksclub.com
  • United States
  • English
  • black & white illustrations
  • 1236861167
  • 9781236861160