The Chief-Justice
delivered the opinion of the court. . ■
The first and second counts of the declaration show a cause of action in favor of plaintiff and against defendants.
' The first plea does not deny the alleged indebtedness, but says the money was not deposited with defendants, A. & W. K. Hyer, partners, but. if such deposits were made they were made with Hyer Bros. The alleged partnership is not denied, or that Hyer Bros, was composed of the defendants alone. The partnership name is-of no consequence in pleading, unless in a suit upon a contract made in the particular name it may become material. (1 Evans’ Pl., 97.) This plea then, so far as it is pertinent, is an admission of the indebtedness alleged, the only real issued raised by it being as to the name of the firm composed of the defendants.
The second plea is the statute of limitations, and as to that it is put in issue by replication alleging an admission of the indebtedness by defendants within two years-or less, and promises to pay. This issue is accepted by defendants’ rejoinder.
The third plea does not negative the alleged indebtedness, or that the defendants had on deposit the money of the plaintiff, as he alleged. The plea is evasive and uncertain, and did not raise a material issue, because it did not show .anything inconsistent with the allegations of plaintiff as to the indebtedness. If Anderson, Hyer & Co. had plaintiff’s money .on deposit, and, on the withdrawal of Anderson from the firm, these defendants kept and retained possession of this [652]*652money, engaging with him- to keep it for him, (and that is what the proof shows,) the allegations in-the first-two counts are true, and the matters of the third plea may be also -true but not inconsistent with the declaration.
- The third count of the declaration: was added .afterthe judgment of the court sustaining the demurrer of defendants to the plaintiff’s replication-to the third. plea, and-by leave to amend. This count alleges deposits by. plaintiff with' Anderson, Hyer & Co., the .withdrawal of Anderson •from the firm, defendants, (the remaining members) assuming, and agreeing with plaintiff to. pay him the money. This count was demurred to and the demurrer- overruled, as it'should have been.
- The testimony in the case is sufficient to sustain .either count of the declaration. It shows an account opened in 1870 or 1871, plaintiff commenced making deposits with Anderson, Hyer & Co., and drawing on them from time-.'to time until the dissolution by the withdrawing of Anderson ; that defendants continued -the business, took possession of plaintiff’s money on deposit there with his consent, -and paid interest annually until 1878, when they found it convenient to stop paying his checks, and demanded a year?s time in which to pay the acknowledged balance.
Now, when the deposits were transferred from the account of Anderson, Hyer & Co. to Hyer Bros, with plaintiff’s assent, and the defendants’ express agreement to pay, ,and treating the deposits as made with them, it was, in fact and in law, a deposit of so much money by plaintiff with defendants, as alleged in the first count.
' The defendants’ plea of the statute of limitations, however available it might have been to Anderson, is overcome by the proof of the acknowledgment of the debt by these defendants, as well as by the promise to pay, which are both clearly proven by the testimony within the statutory period.
[653]*653The motion for a new trial was ' properly overruled, because the verdict was agreeable to the law and to the evidence,- and we presume it was in accord with the charge- of the Court. The charge is not in the record. . ¡ ;
¡ The motion in arrest of judgment was placed upon ¡the ground that the matters of the first and third pleas are. admitted by the amendment made subsequently to.filing of the pleas to be true.
But if the declaration had been substantively defective it was made good by the amendments. No question iC raised by the record that the amendments were, not legally and regularly made, and we must consider them so made'. The defects, if any there were, having been cured by amendment, there is no ground for arresting the judgment; As there is no intrinsic cause now appearing on the face .of the declaration; the motion in arrest cannot be granted. (Sedgwick vs. Dawkins, 18 Fla.; 3 Burr., 1725; 6 Taunton, 650; 2 Tomlin’s Law Dict., 291; Tit. Judgment, Tidds’ Pr., 826.)
As to the motion for judgmgnt on the first and third pleas notwithstanding the verdict, or that a replead.er be directed, it is to be remarked that the first plea set up matter entirely immaterial, as we have before remarked, but it seems that to avoid cavil, the plaintiff, without objection being made to the method, amended by writing upon the face of the declaration the name of the firm. And as to third plea, as we -have said, it shows nothing inconsistent with or avoiding the allegations of the declaration, and offers nlo matter of defence, and, by not.denying, admits».that-ithte defendants hold , plaintiff’s, money on. deposit-, aud-refuse to pay it. - - ■: • -■ ■
Judgment non obstante is given only ¡where fit is -cleanly apparent to the court that the: party who has succeeded (has upon his own .showing no -merits, and cannot have.,by: any [654]*654manner of statement. (2 Bouv. Dict., 440.) In Tatum vs. Tatum, 19 Ark., 194, 199, the court says: “ We are clearly of opinion that if the court below had permitted the parties to go to a trial upon the issues to the four pleas, even if the finding had been for the. defendants, the judgment necessarily must have been non obstante for the plaintiff', for the reason that the matter set up in-those pleas, in no mode-or manner of stating it, could bar or preclude the plaintiff from a recovery on his cause of action.” And see Stephen Pleading, 97. The. rule as laid down by Lord Mansfield in Rex vs. Philips, 1 Burr., 301, in regard to an immaterial issue and a verdict upon it, is that when the' finding upon it’does not determine the right, the court ought to. award a repleader, unless it appear from .the whole record that no manner of pleading the matter could have availed. A judgment, -therefore, non obstante veredicto, is always upon the merits; and a repleader upon the form and manner of pleading. 16 Johns., 230; 2 Tidd’s Pr., 831.
In Hazard vs. Purdom, 3 Porter, 43, (cited by counsel for plaintiff in error) it was held that “ there was error in refusing to charge the jury, on request, that if the evidence established the truth of the second or third pleas they must find -the issue taken thereon in favor of the defendant. Such is the correct rule of practice regardless of the materiality of the issue ; it must be found according to the facts in evidence.” ¡The pleas -\Vere immaterial, but-the court having been requested to charge the jury to find the facts upon those issues, should have done so. The ease in 7 Ala., 457, is to the same effect, but in neither case is it said what the judgment should have been upon such a verdict. But in Cullum vs. Br. Bank, 4 Ala., 21, 39, the court gives the rule. They say: “W.e do not question the right of the defendant, even under such a state of defective pleading, to require the court to instruct the jury to find a verdict on [655]
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The Chief-Justice
delivered the opinion of the court. . ■
The first and second counts of the declaration show a cause of action in favor of plaintiff and against defendants.
' The first plea does not deny the alleged indebtedness, but says the money was not deposited with defendants, A. & W. K. Hyer, partners, but. if such deposits were made they were made with Hyer Bros. The alleged partnership is not denied, or that Hyer Bros, was composed of the defendants alone. The partnership name is-of no consequence in pleading, unless in a suit upon a contract made in the particular name it may become material. (1 Evans’ Pl., 97.) This plea then, so far as it is pertinent, is an admission of the indebtedness alleged, the only real issued raised by it being as to the name of the firm composed of the defendants.
The second plea is the statute of limitations, and as to that it is put in issue by replication alleging an admission of the indebtedness by defendants within two years-or less, and promises to pay. This issue is accepted by defendants’ rejoinder.
The third plea does not negative the alleged indebtedness, or that the defendants had on deposit the money of the plaintiff, as he alleged. The plea is evasive and uncertain, and did not raise a material issue, because it did not show .anything inconsistent with the allegations of plaintiff as to the indebtedness. If Anderson, Hyer & Co. had plaintiff’s money .on deposit, and, on the withdrawal of Anderson from the firm, these defendants kept and retained possession of this [652]*652money, engaging with him- to keep it for him, (and that is what the proof shows,) the allegations in-the first-two counts are true, and the matters of the third plea may be also -true but not inconsistent with the declaration.
- The third count of the declaration: was added .afterthe judgment of the court sustaining the demurrer of defendants to the plaintiff’s replication-to the third. plea, and-by leave to amend. This count alleges deposits by. plaintiff with' Anderson, Hyer & Co., the .withdrawal of Anderson •from the firm, defendants, (the remaining members) assuming, and agreeing with plaintiff to. pay him the money. This count was demurred to and the demurrer- overruled, as it'should have been.
- The testimony in the case is sufficient to sustain .either count of the declaration. It shows an account opened in 1870 or 1871, plaintiff commenced making deposits with Anderson, Hyer & Co., and drawing on them from time-.'to time until the dissolution by the withdrawing of Anderson ; that defendants continued -the business, took possession of plaintiff’s money on deposit there with his consent, -and paid interest annually until 1878, when they found it convenient to stop paying his checks, and demanded a year?s time in which to pay the acknowledged balance.
Now, when the deposits were transferred from the account of Anderson, Hyer & Co. to Hyer Bros, with plaintiff’s assent, and the defendants’ express agreement to pay, ,and treating the deposits as made with them, it was, in fact and in law, a deposit of so much money by plaintiff with defendants, as alleged in the first count.
' The defendants’ plea of the statute of limitations, however available it might have been to Anderson, is overcome by the proof of the acknowledgment of the debt by these defendants, as well as by the promise to pay, which are both clearly proven by the testimony within the statutory period.
[653]*653The motion for a new trial was ' properly overruled, because the verdict was agreeable to the law and to the evidence,- and we presume it was in accord with the charge- of the Court. The charge is not in the record. . ¡ ;
¡ The motion in arrest of judgment was placed upon ¡the ground that the matters of the first and third pleas are. admitted by the amendment made subsequently to.filing of the pleas to be true.
But if the declaration had been substantively defective it was made good by the amendments. No question iC raised by the record that the amendments were, not legally and regularly made, and we must consider them so made'. The defects, if any there were, having been cured by amendment, there is no ground for arresting the judgment; As there is no intrinsic cause now appearing on the face .of the declaration; the motion in arrest cannot be granted. (Sedgwick vs. Dawkins, 18 Fla.; 3 Burr., 1725; 6 Taunton, 650; 2 Tomlin’s Law Dict., 291; Tit. Judgment, Tidds’ Pr., 826.)
As to the motion for judgmgnt on the first and third pleas notwithstanding the verdict, or that a replead.er be directed, it is to be remarked that the first plea set up matter entirely immaterial, as we have before remarked, but it seems that to avoid cavil, the plaintiff, without objection being made to the method, amended by writing upon the face of the declaration the name of the firm. And as to third plea, as we -have said, it shows nothing inconsistent with or avoiding the allegations of the declaration, and offers nlo matter of defence, and, by not.denying, admits».that-ithte defendants hold , plaintiff’s, money on. deposit-, aud-refuse to pay it. - - ■: • -■ ■
Judgment non obstante is given only ¡where fit is -cleanly apparent to the court that the: party who has succeeded (has upon his own .showing no -merits, and cannot have.,by: any [654]*654manner of statement. (2 Bouv. Dict., 440.) In Tatum vs. Tatum, 19 Ark., 194, 199, the court says: “ We are clearly of opinion that if the court below had permitted the parties to go to a trial upon the issues to the four pleas, even if the finding had been for the. defendants, the judgment necessarily must have been non obstante for the plaintiff', for the reason that the matter set up in-those pleas, in no mode-or manner of stating it, could bar or preclude the plaintiff from a recovery on his cause of action.” And see Stephen Pleading, 97. The. rule as laid down by Lord Mansfield in Rex vs. Philips, 1 Burr., 301, in regard to an immaterial issue and a verdict upon it, is that when the' finding upon it’does not determine the right, the court ought to. award a repleader, unless it appear from .the whole record that no manner of pleading the matter could have availed. A judgment, -therefore, non obstante veredicto, is always upon the merits; and a repleader upon the form and manner of pleading. 16 Johns., 230; 2 Tidd’s Pr., 831.
In Hazard vs. Purdom, 3 Porter, 43, (cited by counsel for plaintiff in error) it was held that “ there was error in refusing to charge the jury, on request, that if the evidence established the truth of the second or third pleas they must find -the issue taken thereon in favor of the defendant. Such is the correct rule of practice regardless of the materiality of the issue ; it must be found according to the facts in evidence.” ¡The pleas -\Vere immaterial, but-the court having been requested to charge the jury to find the facts upon those issues, should have done so. The ease in 7 Ala., 457, is to the same effect, but in neither case is it said what the judgment should have been upon such a verdict. But in Cullum vs. Br. Bank, 4 Ala., 21, 39, the court gives the rule. They say: “W.e do not question the right of the defendant, even under such a state of defective pleading, to require the court to instruct the jury to find a verdict on [655]*655the proper issue Sustained by his proof, because, in that event, the plaintiff would be placed in a condition to extricate himself from the vicious plea by a motion to enter: a judgment non obstante veredicto.” Stephen on Pl., 129.
We conceive that if the defendants in this case had asked the court to instruct the jury-to find the issues in faA’or of the-defendants upon the first and, third pleas, and the court had so instructed the jury and the jury had so found, still upon -the pleadings and the evidence it would' have been the duty of the court-to give.judgmeut for.the,plaintiff’ non obstante, because the pleas were not substantial .and' did not warrant a judgment for the-defendants, and it was not the duty of the court to direct a repleader, because^ as is said in Tidd’s Pr’., 829, 831, that “ if the plea contain a defective title or ground of defence, by which, if it is apparent to the court upon the defendant’s own showing, that in an}’ way of putting it he can have no merits, and the issue thereon be found for him, then, as the awarding a repleader could not mend the case, the court, for the sake of the plaintiff, will at once give judgment non ,obstante veredicto. But where the defect is not so much in the title as in the manner of stating it, and the issue joined thereon is immaterial, so that the court know not for whom to give judgment, then, for their- own sake, they will award a‘re-pleader.” ...
Here the defect of the defendants’ pleading is not “ in the manner of stating it,” but it is apparent “ that in any way of putting it he can have no merits,” and there is no doubt upon the whole case that the court should give judgment for the plaintiff, and that a repleader would be fruitless.
We find no error in the judgment, and it is affirmed.