I do not agree to the disposition which has been made of this case by the majority of the members of the Court participating in the consideration of it.
The declaration does not state a cause of action such as is stated in the opinion by the Chief Justice, with whose reasoning based upon that statement, I agree. But it does not lie within the power of this Court to state a cause of action for the plaintiff from the evidence in the case. It is an elementary principle of judicial procedure that the plaintiff must recover if at all upon the case made by his declaration, not upon the case made by the evidence if that case is not stated in the declaration. See Ingram-Dekle Lumber Co. v. Geiger, 71 Fla. 390, 71 South. Rep. 552, Ann. Cas. 1918 A. 971n.
This rule has been so often recognized by this Court and the reason for it so generally respected that further citations are unnecessary. If that rule did not obtain, if litigants were not required to state with a reasonable degree of certainty the causes of their complaints or their defenses but were permitted to proceed in an inartificial and unscientific way in the matter of the pleadings, judicial trials *Page 331 from the standpoint of our institutions would be a farce and courts would become mere commissions of arbitration without any of the elements of a court of judicature except the power to decide.
The declaration in this case states no cause of action. It is impossible to determine from its language whether the pleader declares on a contract and seeks damages for its breach or whether he sues upon three promissory notes. Certainly there is not a suggestion in the declaration about the balance due as "unpaid purchase price of lands contracted (for) in writing." There is no allegation of any breach of a contract except the failure to pay the notes which were "specified" in the written instrument. There is no suggestion in the declaration that possession of the land had been delivered into the possession of the defendant, nor that title deeds had not passed to him.
If the plaintiff wished to bring his action on promissory notes each note should have been made the subject of a separate count, because any plea must go to the entire count, not to a part of it. If two or more notes are included in one count, how may a good defense to one of them be pleaded? If it wished to sue upon the contract it should declare upon it either by way of a declaration on simple contract or in covenant as the nature of the contract required.
The circuit court had no power to proceed with the hearing and determination of the matters presented by the documents constituting the pleadings in this case, because until a case is stated and issue is joined between the parties there is no case for the exercise of the judicial power. I deem it to be of the greatest importance to the preservation of our judicial system that causes presented in court should be determined according to the rules of pleading and procedure, *Page 332 which are designed to enable litigants to present to the court with reasonable certainty the points of controversy between them. For a court to take the papers in a record, consisting of statements as to claims and statements as to why they have not been paid, and the so-called evidence which has been introduced pro and con, and undertake to state a cause of action and construct a defense to it for the parties is not within the power of the court in the first place and sets up a government by men instead of by rule which is sometimes called substantial justice.
I think the judgment should be reversed on the ground that no case was tried by the court.