Clutter Construction Co. v. Naples Builders Supply Co.

District Court of Appeal of Florida

Clutter Construction Co. v. Naples Builders Supply Co.

166 So. 2d 813

District Court of Appeal of Florida·Decided August 18, 1964·No. No. 64-137·Published·Cited by 2 cases

Opinion

PER CURIAM:

Clutter Construction Company, Inc., was sued for goods sold. The complaint annexed a fully itemized statement of the account. For its answer the defendant plead a general denial, and added “never was indebted.” At the trial the defendant attempted to cross examine plaintiff’s witness as to the quality of the goods delivered. The-court sustained plaintiff’s objection upon the basis that there was no pleading raising an issue of set-off for inferior goods. [814] This ruling was repeated when defendant attempted to offer evidence of a dispute between the parties as to “strength of the concrete delivered.”

These rulings are the basis for defendant’s appeal from the final judgment for plaintiff. We find that no error has been shown because Rule 1.11(b), Florida Rules of Civil Procedure, 30 F.S.A., directs that “Every defense, in law or fact, to a claim for relief in any pleading * * * shall be asserted in the responsive pleading * * * except” (here follows seven exceptions each inapplicable here).

The plaintiff, Naples Builders Supply Co., Inc., cross assigns error upon the court’s failure to direct the jury to assess interest. It is true that the plaintiff did “ask the court” to include interest but at the time of its motion for directed verdict, it had offered no evidence as to interest. Therefore, the court did not err in failing to compute and include the interest claimed. Cf., Shoup v. Waits, 91 Fla. 378, 107 So. 769.

The judgment is affirmed.

Affirmed.

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PER CURIAM:

Clutter Construction Company, Inc., was sued for goods sold. The complaint annexed a fully itemized statement of the account. For its answer the defendant plead a general denial, and added “never was indebted.” At the trial the defendant attempted to cross examine plaintiff’s witness as to the quality of the goods delivered. The-court sustained plaintiff’s objection upon the basis that there was no pleading raising an issue of set-off for inferior goods. [814] This ruling was repeated when defendant attempted to offer evidence of a dispute between the parties as to “strength of the concrete delivered.”

These rulings are the basis for defendant’s appeal from the final judgment for plaintiff. We find that no error has been shown because Rule 1.11(b), Florida Rules of Civil Procedure, 30 F.S.A., directs that “Every defense, in law or fact, to a claim for relief in any pleading * * * shall be asserted in the responsive pleading * * * except” (here follows seven exceptions each inapplicable here).

The plaintiff, Naples Builders Supply Co., Inc., cross assigns error upon the court’s failure to direct the jury to assess interest. It is true that the plaintiff did “ask the court” to include interest but at the time of its motion for directed verdict, it had offered no evidence as to interest. Therefore, the court did not err in failing to compute and include the interest claimed. Cf., Shoup v. Waits, 91 Fla. 378, 107 So. 769.

The judgment is affirmed.

Affirmed.

Clutter Construction Co. v. Naples Builders Supply Co., 166 So. 2d 813 (Fla. Ct. App. 1964).

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