The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1882-03-21

b. DYKE. b.
payment cash on handbag specifcaHsns,r 3 a
entire and not q severAble agreement. = n
2. On delivery OF . portion Of such timber,
duly inspected, the purchaser refuses to pay the
fall price but deducss e30o, being the amount
Of . draft previously drawn on him hT The seIlef
which the purchaser falsely says he he's paid, oa
the faith Of which statement delivery was made,
and the 900 remains unpaid. This 8 not eom-
pliAnce oy the purchaser, and d sach breach
OF the contract that the seller may refuse further
delivery under k r#rsn v W
3, After such breach. Qhe purchaser haEing
assigned the agreement f0r the benefit Of his
credtors) the assignor in his own right o. for his
assignees can not recover damaRes for subseoueng
non-dellvery TO him. III t.
4 The assignee of such q contract takes il
subject to all dcfences available against the
assignor I'm
8. The purchaser Of certain Quantity Of tim
Der under contract to pay for il on delivery,
rom time to time, by becoming insolvent and
making an assignment for the benefit Of creditors,
u disabled to perform, and thencefOrth neither
he nor his assignees can claim damages for future
non-dellvery to the assignees, with whom the
seller did not contract
8. In declaration in suit by the purchaser
against the seller for breach Of contract by the
Der as fast as water will permit, and to Be com
PIeted not later than the 18th OF June" it fs
essential to allege that the water was such as to
permit the delivery, this being evidently con-
ditiOn of the contract to deliver
2. demurrer by plaintiff to plea of the
defendant reaches essential defects in the declara-
ton, and if that be defective the demurrer TO the
plea should not be sustained
Judgment reversed.
G. G. McWhorter and j. c. Avery, Counsel
for Plaintiff in Error w. A. Blount, Counsel for
Defendant in Error.
]. A. Hayden, Appellant vs.. B. H. Thrasher
ct al, Appellees- Marion county.
RANDALL, c. j.:
L Where a surety becomes liable by signing
at the request of co surety, who agrees to in
demnify and save him harmless he may after
the money becomes due, maintain q bill in EQ-
uity TO compel the co-surety to pay the debt and
save him harmless, not only as 10 money he has
paid, but also as TO whatever he is liable to pay
on account of being such surety 1T III
2. In such case, where fraudulent conduct on
the part OF the co-sureiy, whO ought to pay the
debt is shown, not only in the inception of the
liability, but in the disposition of his property
writ of injunction and such other process as may
be necessary may be prayed in the first instance
to prevent fraudulent transfers, and to hold
property and assets to the relief of the surety
entitled to protection, and il is not necessary to
obtain judgment at law against the co-surety be-
fore filing such bill. HI
3. A bill in the nature of a creditors bill is
not multifarious because it prays discovery and
relief against several who are not united in in
terest and who may be strangers to each other
as the object of the bill is TO reach sundry assets
of principal defendants in their several pos
session. EI
Decree reversed If
s. D. Mcconnell and Q. D. Harrison Counsel
for Appellant B. H. Thrasher. Counsel for Ap-
pellees.
John J. Knox, Comptroller of the Treasury of
the United States, as Commissioner ofthe Freed
mans Savings and Trust Campany, Plaintiff
in Error. VS.. William B. Barnett Defendant in
Error-DuVal county.
WEsTCoTT, J.:
l. Where, by consent, there is trial by the
court, a motion for new trial upon the ground
that the finding was contrary to the law and evil
dence Overruled, and exception thereto, this
Court, upon writ of error, is authorized and re-
Quired by Chapter 521, laws and other statutes,
10 review such action overruling the motion for
new trial and to examinine the evidence
=. Where general agent having power to
sell piece Of land, limited only in the method
of payment, and the agent having control of the
rents of building on the land, upon a sale of
the land at public sale announces in the presence
of tenant, that the purchaser, after a named
date shall be entitled to the rents and the special
agent, upon payment for part of the time 10
the purchaser expresses approval of it. the prin-
cipal is esiopped from claiming rent paid to such
purchaser by such tenant A
Judgment affirmed.
G.. W. Deans Counsel for Plaintiff in Error;
Cockrell & Walker, Counsel for Defendant in
Error.
Albert Hyer and W. &. Hyer Plaintiffs n Err
ror, vs. Ambrose Vaughn, Defendant IN Err
ror-Escambia County.
RANDALL, c. j.:
l. An amendment to a declaration, after plea
filed, by interlining in the original the partner
ship name OF the Defendants as the name was
stated in the plea, objection having been
made to such mode of amendment, is not an
irregularity Of which the court will take notice.
g motion in arrest OF judgment where the
verdict and judgment In favor of the plaintiff,
will not be granted if the declaration on its face
shows valid cause of action and is not demur-
rable
g. Where a cause has been tried upon several
issues, but some of them immaterial and a
verdict rendered for plaintiff upon the whole case
upon the merits, a Judgment obstdnk Ueredicko
cannot be given for the defendant upon the ground
that some OF the immaterial issues should have
been found in favor of the defendant. If the YER
dict had been in favor of the defendant upon
such immaterial issues, still the plaintiff would
have been entitled to judgment non O6stGnk
l. Ii was not error in such case to refuse a
motion by the defendant, that repleader be or
dered where the pleadngs on the part of the de-
fendant raise mmaterial issues and it is apparent
from the whole case that no manner of pleading
the matters embraced in the pleas would have
made them available. A repleader is only or
dered upon the form and manner of pleading,
where the matter is substantial
Judgment affirmed.
c. G. 1onge, for Plaintiffs in Error; D. l.
McKinnon, for Defendants in Error
Thomas McMurray and George W. Britain, Ap-
pellants, vs. Arthur ID. Basuett and wife, Ap-
pellees-Duval county.
VAN VALKENBURGH, j.:
l. A verdict will not be set aside as against
the weight of evidence when such evidence Is
so contradictory TO make il the duty OF the jury
to decide upon the credibility Of the witnesses,
although such evidence seems TO prepondesate
against their finding. unless there is ground for
belief that the jury acted through prejudice pas
sion, mistake or any other cause which should
not properly control them.
2 In q motion for new trial upon such
ground where the court below has denied il, " 1t
should be very plain case to justify an appel
late court in setting aside this concurrent conclu-
sion OF both court and jury" II
D. In regard TO excessive damages. the rule is,
that Ia actions sounding in damages, when the
Law furnishes no legal rule Of measurement save
the discretion OF the jury upon the evidence be-
fore them, courts will not disturb the verdict
upon the ground Of excessive damages, unless il
be 80 hAgrantly improper as to eyince passion,
he