Blanton v. Woodward, Admr.

The petition for rehearing filed herein having been considered by the Court, and the foregoing opinion prepared under Chapter 14553, Acts of 1929, adopted by the Court as its opinion, it is considered, ordered and decreed by the Court that the said petition for rehearing be and same is hereby denied and that the court do adhere to the opinion heretofore filed in this cause.

BUFORD, C.J. AND WHITFIELD, ELLIS, TERRELL AND DAVIS, J.J., concur.

BROWN, J., dissents in part.

Paragraph 1 of the answer reads as follows:

"1. These defendants admit the allegation contained in paragraphs 1, 2, 3, 4, 5, 6 and 7 of the bill of complaint."

Paragraph 4 of the answer reads as follows:

"1. These defendants admit the allegations contained in paragraphs 10, 11 and 12 of the bill of complaint."

I think the court erred in striking the paragraphs above quoted. It seems to me that these paragraphs of the answer comply fully with the statute of 1915, now Section 4904, C. G. L., and retained as Sec. 34 of the Chancery Practice Act of 1931. As I understand it, the purpose of the legislature in enacting this statute was to simplify pleading and practice in chancery and not to require of the defendant a more cumbersome or complicated answer than was theretofore generally used in chancery suits.

I am inclined to the view that the correct interpretation of the 1915 Statute is that it abolishes the former practice of concluding an answer with a general denial, and prevents the defendant from being allowed to answer the whole bill by merely saying that he denies or is without knowledge as to each and every allegation of the bill of complaint, but that the legislature contemplated that ordinarily in a chancery suit the defendant would of his own knowledge know that some of the allegations of the bill are true, some of them he would contend are untrue, and perhaps *Page 703 as to other allegations he would not know whether they were true or untrue. So, the statute puts upon the defendant the duty of admitting the allegations which he knows are true, and requires him to point out specifically those which he contends are untrue and specifically to deny them. And then, as to the allegations of which he has no knowledge, to so state, and his statement that he is without knowledge operates as a denial.

It would appear entirely unnecessary to embrace in an answer a separate paragraph as to each paragraph of the bill which the defendant desires to admit or deny in toto. If, for instance, the defendant knows that the first ten paragraphs of a bill are true, why should he not be permitted to admit this in one paragraph, specifying the respective paragraphs thus admitted, instead of lengthening his answer by putting in ten paragraphs, one for each of the admitted paragraphs, seriatim? However, the error in striking paragraphs one and four of the answer was probably error without injury, as under Section 4905 C. G. L., such averments of the bill, even if not denied, would be deemed confessed.

As I understand it, the majority holds that under the statute a defendant in his answer may deny each and every allegation contained in a specified paragraph of the bill of complaint without being required to repeat substantially the several allegations of such paragraph and then deny each of them separately. In this respect I fully concur.

Upon further consideration, I am inclined to the view that paragraph eight of the said answer of Mrs. Kemp and her husband, if it had not been specifically interposed as a set-off or counter-claim, might have been upheld as being in substance an averment or plea of payment of the mortgage debt by services rendered to the mortgagee at her request and in consideration of which she promised that *Page 704 she would satisfy of record the mortgage sought to be foreclosed. See Bates v. Lanier, 75 Fla. 79, 77 So. 628. It is true that in the absence of an agreement to the contrary, money is the sole medium of payment. But this does not mean that nothing else may be used to discharge a debt. On the contrary, anything which a debtor delivers and a creditor accepts in discharge of an obligation is a payment thereof. 21 R. C. L. 37. By agreement or consent of a creditor, services rendered by the debtor may constitute a payment, though it has been held that services voluntarily rendered do not extinguish or reduce the debt. 48 C. J. 629.

The second headnote to the case of Patrick v. Petty,83 Ala. 420, 3 So. 779, reads as follows:

"Where there is a contemporaneous oral agreement that a promissory note is to be discharged by boarding and caring for the payee for a given time, so long as the agreement remains executory, it is wholly inoperative as a defense to a suit on the note; but when it has been performed it becomes a complete defense, and if performed in part, and full performance is prevented by the death of the payee of the note, it amounts to payment pro tanto, without presentation as a claim against the estate."

I am inclined to the view therefore that a debtor may as effectually discharge his debt by performing services for his creditor as by paying in cash, when his creditor agrees to accept such services in payment and the services are actually performed pursuant to such agreement. It is quite possible that if the chancellor had refused to strike the paragraph on the ground that it was in substance a plea of payment it would not have been an erroneous ruling, the answer having been filed before the Chancery Act of 1931 became effective. But taking paragraph eight of the answer as what it purports to be, a set-off or counter-claim, and considering it in connection with the prayer for an accounting as to the amount of the indebtedness due to *Page 705 defendant thereunder, I am now inclined to think that such paragraph should not have been stricken. This court, it is true, is committed to the rule enunciated in Lovett v. Lovett, 93 Fla. 611, 112 So. 768, and Turner v. Utley,93 Fla. 910, 112 So. 837, that the cause of action asserted as a set-off or counter-claim under section 4906 C. G. L. must be of equitable cognizance and must set up matters arising out of or connected with the subject matter of the original bill, or arising out of the transaction which is the subject matter of the suit. But I am inclined to the view that Mrs. Blanton's promise to satisfy the mortgage in consideration of Mrs. Kemp's services to her, as alleged in paragraph 8, shows that said paragraph sets up matters connected with the mortgage which was the subject matter of the suit, and also matter as to which the defendants were entitled to an accounting in equity in this cause under the principles laid down in Bates v. Lanier,75 Fla. 79, 77 So. 628.

I think therefore, that the petition for rehearing should be granted and the former opinion and judgment should be reconsidered.