In this case our attention has been called to the fact that the plaintiffs in error contended that a demurrer to a plea interposed was erroneously sustained and that in disposing of the case we did not mention that contention in the opinion prepared.
The cause of action was a guarantor's obligation, a pertinent part of which was as follows:
"FOR AND IN CONSIDERATION of One Dollar, to us in hand paid by McConnon Company, the receipt whereof is hereby acknowledged, we hereby jointly and severally guarantee, absolutely and unconditionally at all times, payment at Winona, Minnesota, of any indebtedness to the said McConnon Company, hereafter incurred by or for Ulysses McDonald of Graceville, State of Florida, by reason of the sale of goods, wares, merchandise and equipment to him, from time to time, by the said McConnon Company pursuant to any agreements, terms or conditions entered into between the Company and him, and regardless of his ability or willingness to pay and we hereby waive notice of any default by the said Ulysses McDonald and consent to any extensions by McConnon Company of time of payment by him."
The plea interposed was as follows:
"That subsequent to the execution of the guaranty sued on herein, the plaintiff by its acts towards, and instructions and directions to the said Ulysses McDonald, by caprice and inducement inveigled the said Ulysses McDonald to adopt a system which the contract secured by said guaranty did not call for in dealing with purchasers of the merchandise delivered by the plaintiff to the said Ulysses McDonald, that is, by caprice and inducement inveigled the said Ulysses McDonald to place the merchandise so delivered to him *Page 883 out with customers on the so-called time and trial plan, plaintiff thereby assuming the credit list and chance of loss, rather than selling the same to the said Ulysses McDonald, and thereby by such acts and directions the plaintiff waived its right to hold the said Ulysses McDonald, or these defendants liable therefor. That the said Ulysses McDonald acting under and by the aforesaid acts and instructions of the plaintiff placed goods delivered by the plaintiff to him with customers under the aforesaid plan amounting to the sum of Two Hundred, Sixty-eight and 80/100 Dollars, an amount in excess of the amount sued for herein. Wherefore, these defendants say that they are not liable to the plaintiff in any sum."
The allegations of the plea were entirely insufficient to constitute a defense to the declaration.
The guarantors by their written agreement unconditionally guaranteed payment at Winona, Minnesota, of any indebtedness to McConnon Company thereafter incurred by or for Ulysses McDonald of Graceville, Florida, by reason of the sale of any goods, wares, merchandise and equipment to him by said McConnor Company pursuant to "any agreements, terms or conditions enteredinto between the company and him." (Emphasis supplied.)
The plaintiff in error relied in his brief on the opinion and judgment in the case of W.T. Rawleigh Company v. C.A. Langford,et al., 112 Fla. 487, 150 So. 592, but that case presents no authority for his position. All that was decided there was that defense of waiver, release or estoppel as applied to provisions of written contract sued on must be specifically pleaded to be available and there was no intimation that conditions such as are pleaded here would constitute waiver, release or estoppel. *Page 884
In the original opinion filed herein on July 23, 1936, we pointed out the only error apparent on the record.
ELLIS, P.J., and TERRELL and BUFORD, J.J., concur.
WHITFIELD, C.J., and BROWN and DAVIS, J.J., concur in the opinion and judgment. *Page 885
IN THE SUPREME COURT OF FLORIDA JUNE TERM, A.D. 1936 IN RE: AMENDMENT AND REVISION OF COMMON LAW RULES FOR THE GOVERNMENT OF TRIAL COURTS IN COMMON LAW CASES.
Order entered September 18, 1936.