dissent.
The following opinion, prepared by the late Mr. Justice Davis before his death, has been concurred in by Mr. Chief *161Justice Ellis and Mr. Justice Buford, as expressing their views and is ordered to be filed.
Plaintiff Langford sued for the balance of a commission alleged to be due for procuring a buyer for defendant’s land. Defendant contended by way of defense that plaintiff agreed to take his 5% commission as and if defendant collected from the buyer, so that the entire commission was not payable upon plaintiff’s merely producing a buyer. The plaintiff and his associates were .paid one-half of the commission agreed upon, although the buyer had paid one-fourth of the purchase price when the latter decided to re-convey the land to the seller, which was done.
The plaintiff in error was plaintiff below. This controversy has once before been reviewed by this Court and a judgment for defendant on directed verdict reversed. See Langford v. King Lumbr & Mfg. Co., 108 Fla. 463, 146 Sou. Rep. 588. Upon remand and retrial, a verdict by a jury was rendered in defendant’s favor. Upon an earlier consideration thereof by this Court, the judgment entered thereon was affirmed. See: Langford v. King Lumber & Mfg. Co., 123 Fla. 855, 167 Sou. Rep. 817. Rehearing has been granted and the cause reargued as to the correctness of the judgment on the third and fourth counts of the declaration.
The declaration consisted of seven counts. The third and fourth counts were each founded upon the alleged written promise of the defendant to pay the balance of a commission of $11,029.96 for the sale of defendant’s lands, which defendant acknowledged it owed. The written promise sued on was as follows:
"To H. P. Langford and J. W. McCoy:
We hereby acknowledge that there is a, balance due of $11,029.96 as commission on the sale of a tract of land which we own South .of Kinsey to the G. M. and R. J. *162Development Co., which commission we hereby agree to pay when the G. M. and R. J. Development Co. makes full payment of the first maturing note which they gave to us as the balance of purchase price thereon with interest, and when same is paid we agree to allow on said commission the same rate of interest as the notes of the G. M. & R. J. Development Co. bears.
“King Lumber & Mfg. Company,
“By H. T. Davis,
“Sec. and Gen. Mgr.
“Arcadia, Florida,
“October 5, 1925. '
“Arcadia, Florida, October 30, 1935.
“For value received I hereby assign to the DeSoto National Bank of Arcadia my share of the above commission.
“I-I. P. Langford."
As to the third and fourth counts, the defenses interposed by pleas thereto, were as follows: (1) payment; (21 the general issue; (3) in abatement for non joinder as plaintiff of the McCoy named in the written memorandum as a joint promise with Langford.
Since the judgment below was one of nil cepit and not in abatement, the issue raised by the plea in abatement, even if we should hold it sustained by the evidence, cannot support an affirmance of the judgment now before us, insofar as the third and fourth counts of the declaration are concerned, because the judgment entered pursuant to a plea in abatement should not be a final judgment nil cepit, but a special judgment appropriate to the plea in abatement.
There was no’ evidence whatever to sustain the plea of payment of the amount acknowledged to be due in the instrument of writing described in the third and fourth counts, *163so the verdict for defendant is not justified on the plea of payment.
Nor is the verdict for defendant, justified by the evidence considered in connection with the plea of general issue. That issue was fully met by plaintiff when plaintiff established the execution of the writing sued upon and described in the third and fourth counts of the declaration. See Rule 64, Rules for Government of Circuit Courts in Common Law Actions (old rule in force at time of trial).
An eighth plea setting up a special defense was withdrawn at the trial, so the verdict of the jury cannot be said to have been predicated on that plea.
Thus it appears from a reconsideration of the entire record on rehearing that this Court should not have affirmed the judgment for defendant insofar as the third and fourth counts of the declaration are concerned, although its judgment of affirmance on the other counts of the declaration was proper in the light of the former opinion of this Court filed herein on April 20, 1935.
It appears that an appropriate judgment of the appellate court in the premises is to reverse the judgment as to the third and fourth counts of the declaration, remand the cause, and direct a retrial of the issues as to said third and fourth counts, with directions to the trial court to award to the defendant below the privilege of filing such amended or additional pleas as it may be advised in order to advance its defenses, if any, to the causes of action laid in said third and fourth counts, with the privilege to plaintiff below to file such demurrers, motions or replications to such pleas as he may be advised, and otherwise to have such cause proceed to judgment in accordance with law and the opinions of this Court herein and heretofore rendered.
Ellis, C. J., and Buford, J., concur.