The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1886-06-17
HEAD-NOrES 10 DECISIONS OF THE
SUPREME COURT OF FLORlDA:
June Term, a. ID. 1855.
Rchccca l.. Myrick, Appellant, VS.. Alexander
Merritt, Appellee .Iackson county.

Rchrccl l.. Myrick, Appellant, VS.. Alexander
MERRITT, Appellee jackson county.
R>NEY, j.:
|. \ demurrer to Il plea reaches any substan-
iial defect in The declaration, or ;he count thereof
| To which The plea has been tcndcred, but not IA
defect OF mere form.
2 Tnc appellant, upon whom an order Was
Dir wn IN favor of HE appellee by II. II J :, for
| five hundred ani seventy dollars balance due
ON the hous" we are now building for you,' ac
ccptcd il as follows: " acccp, the above when
the house is finished according to contract and
| delivered. To pay sad sum by he first of Jan
uary 1880 interest Ia commence when said build .
my l., dcIlvrrcd y: We6l, TO be II conditional ac
ccp'ance, and that no recovery could be had
against The accrpor upon the instrument until
| the house has been finished according To the
| contract, whatever II might hc and DELIVERED
3 The declaration upoh IL conditional acccp-
tancc must al!ege Il performance OF the condi-
tl0n.
A. An allegation of IL delivery OF IL house and
That the aCccptnr has been in posscSSiun Is not
| sufficient allegation OF performance of the con-
dilionS that thc house has been finished ac.
curdng 10 contract and delivered" upon which
| Il draft Is payable The allegation that the plain
till, ih" Imyce, gave the acctpinr notice that he
held himself ready to complete the house accord
| ing 10 contract or To pay her Il reasonable sum
! for his lalurc It She w"uln point out to him the
Deficiencies ar omissions, and that she refused
| Ia do s. and that She refused Ia permit him 10
enter The house Tor The purpose oi completing it
accur'ting 10 contract, is not IL Sufficient aver
| mcni ot performances of HE conditions named
in The acceptance, whether considered alone or
in connection with above allegation of delivery
IL and |, secession by The acccptnr.
, Ii, IN any case of non perform ince hv IA
drawer of The conditions iiamcl by the ;cc,.,,tor
il ihc :nrcpi;ulcr, the pnyce has II right pl nc
ti"n ~ inst The acccpor who REFUSES To permit
| him ln perform the conditions, which the drawer
under contract tD D,I,Ofn #
ton j. not upon the acceptance, bat is one .t
siccil action on The CAS-. tu: tltntucS occi-
stoned by the acccptor's refusal and prevention
o pclinrnrncc by the paycc.
u. Where there l. both Il demurrer and {. repli-
cation 10 Il plea, ii is matter ot di,cre' ion with
HE Circuit Court rs to which issue shall be first
| dIsl'Os 'l oi. Assuming Ihat such discretion can
ever he controlled, it cannot be done when there
is no showing Of IN abu,e OF the discretion
| !. w here ~ exception has been taken upon
the lrial to lIc srclll~t of the Circuit Judge To
give certain instructions to the jlry, and HE in
slruCionS So Refused have been then ana there
written ont and endorsed rs refused and the ex-
cerli"n noted and signed by the judge and the
paper filed, ii constitutes OF Itself special bill
! ot exceptions As To such in-iruc ions and when
it has been incorporated in this shape into the
general bill OF EXCEPTIONS and such general bill
has been subsequently, struck from the record bv
n order of the appellate court bec;'l,e it was
not >citlc'i in The time allowed the special bill is
| Oot tlltctU by Slltli 0ItltT ana VIII DC cOliSlU
cred a> if such order had not been male
:. Where there is no bill of exceptions show
in. that any exception W is taken 10 an instruction
| given io The jury or To the exclusion or a,lmis.
sion OF evidence, The ruling OF the court upon
such instructions or testimony cannot be re-
viewed on appeal.
9. Where, there has been refusal To give GER
t1in instructions to the jury, and the testimony
upon which they were based is not incOrporl-
ted IN The bal ot exceptions, II Will be assumed
ihrt there was no error i'll refusing to give
ii.n aud they will not be bccnn>id,.re,l on appeal
TO- Where there is one COOL count in II
declaration and II plea thereto aud Issue Joined
thereon and here is no bill of exceptions show
iny the evidence al-lIcci on the trial The appel
late court will presume thai the evidence WAS
sufficient to sustain the verdict rendered in favor
of the palniil
judgment affirmed.
John w. Malone, for Appellant I.llon &
Carter, Tor Appeccs.
The Prnnsular Railroad Company, Appellant,
vs. Thomas +. Gary, Appellee = Marion
county.
VANN ALkENBUIaiH, j.:
l. \ roil master of II railroad company, or a
conductor on train, are not St, far agents of the
railroad comptny rs to be legally authorized TO
employ Physicians or surgeons to attend upon
an empuye who is injured by the car, of the
complny, unless they are specifically charged
with That duty
,. The conductors direction to. the physician
surgeon To extend such medical aid, or his
promise that The same when rendered shall be
paid Tor l'y the Dmptny do not render such
company liable for The same, unless there is
proof thai he i, authorized 81 To do.
>. contract by Il road master, conductor or
other agent without authority, may be ratified
by the curppf;lliun, and 50 become binding
upon it.
4 III: action of the General NJ .na5cr mly
by his ratification of sich IL contract made by II
slbordn tic agent, render the corporation Liable
thereon.
Judgment reversed.
John G. Rcardon for Appellant 5. ID. Nc.
Cunnc for Appellee.
j. c Briagcr ct al, Appellants, VS. w. L. Trashcr,
ct al, Apprll'es -Volusia county.
MCWnoRTER, &. j.:
/. \ ca complainant who alleges that he had
disposed Of all his interest in The property in
dispute before The commencement Oi the suit IL
an improper party thereto.
> When some allegations in u bill show il case
emitting Il complainant 10 relief, but are contra
dictcd by other allegations in the same bill, and
it is impossible for The court to determine the
true nature of the case sought To be ma lc by the
BILL IL demurrer thereto should be sustained.
| g. Ii is the duty of the attorney, on an appeal
to this court To see that the Transcript of the
proceedings in the court below is properly ma,lr
up by the clerk.
Decree ovcrruling the demurrer reversed.
George Wheaton Deans, for Appellants
Abby Scoli Il ThrasIer, for Appelees.
State ex rel A. N. Edwards, Relator, VS.. The
County Commissioners OF Sumter County, Re
Observation-Disclosures.
RANEY j.:
l. The pealings in mandamus make an issue
of fact as To whether certain names appearing ON
IA petition under the act of 1888, Chapter 3416
for permit to sell liquors, and necessary TO cou-
stitute majority of the registered voters of the
election district are the authorized signatures ol
the persons represented by such names. Upon
such an issue person OF name similar to Que
so appearing on SUCH petition Was called
witness in behalf OF the respondents, and testi
fled that he was registered voter of the election
district, but that he neither sgned nor authorized
any one TO sign his name TO the petition. aud il
was shown that but one similar name appeared
on the list Of registered voters OF the district ant
there was no evidence in rebuttal OF his testi
mony, except that the original petition was nd
mitted in evidence without proof Of the genuine
ness of such signature either by any witness