Riedel v. J. R. Watts & Sons, Inc.

158 So. 890, 118 Fla. 285, 1935 Fla. LEXIS 1698

Opinions

Buford, J.

A suit by attachment was instituted on behalf of C. E. Riedel against J. R. Watts & Sons, Inc. The declaration was one of breach of covenant to pay a note in the sum of $329.56, with interest. There was one plea, a plea of payment, as follows:

“That before action it discharged and satisfied plaintiff’s claim by payment.”

Plaintiff proved the covenant and the breach.

Defendant tendered no evidence of payment.

The evidence submitted, if it tended to prove any defense, was one of accord and satisfaction. That was' not pleaded and, therefore, such evidence was irrelevant and immaterial and should have been excluded on timely objection being made.

It is elementary that when the plaintiff has produced sufficient evidence to establish his cause of action and right to recover a defendant who has pleaded payment then takeá the burden of proving payment, and the proof of some other defense will not suffice, nor warrant a verdict and judgment in his favor.

The judgment should be reversed and the cause remanded for a new'trial.

It is so ordered.

Reversed and remanded.

Whitfield, C. J., and Terrell and Davis, J. J., concur. Ellis, P. J., concurs specially. Brown, J., dissents.