Lott v. Barnes & Jessup Co.

Shackleford, J.,

concurring. — I concur in the conclusion reached by Mr. Justice Cockrell and in the main with what is said in his opinion. I would like to’ emphasize one point. Since the plea “fails to allege such an agreement as would in dignity overcome the solemn act of the parties as evidenced by the very full and complete sealed instrument set forth in the bill,” to use the apt words in Mr. Justice Cockrell’s opinion, that, in my opinion, makes the plea fatally defective. This court has consistently and uniformly held, since its organization in 1846 up to the present time, that any pleading, whether in an action at law or a suit in equity, is to be strongly construed against the pleader thereof. We have further held in pursuance of this principle, that the one filing a pleading must suffer the consequences of omitting therefrom essential matters which are presumed to lie peculiarly within his knowledge and which would tend to make the pleading certaiii. We have also held that “when a plea has on the face of it two intendments, it ought to be construed most strongly against the party who pleads it.” Cotton v. Williams, 1 Fla. 37, text 49. Also see Bennett v. Herring, 1 Fla. 387, text 390. In Atlantic Coast Line R. R. Co. v. Beazley, 54 Fla. 311, text 398, 45 South. Rep. 761, text 789, we held that this principle must apply with especial force to a plea which is in the nature of a confession and avoidance. It is also an established principle that the allegata and probata must meet and correspond and that the complainant should al*473lege in his bill the matters upon which he relies and which are material to his case. Lyle v. Winn, 45 Fla. 419, 34 South. Rep. 158. In other words, he must allege such matters as he would have to prove, for proof without sufficient allegations is unavailing. If a replication had been filed to the plea in the instant case, it would have been incumbent upon the defendants to prove the matters averred therein. Ocala Foundry & Machine Works v. Lester & Daniels, 49 Fla. 347, 38 South. Rep. 56. This being true, I do not see why the principle enunciated in Lyle v. Wynn, supra, is not equally applicable to a plea in equity. To hold otherwise, it seems to me, would be equivalent to saying that the plea constituted a defense to the bill, whether the agreement undertaken to be set up therein was in writing, under seal, as was the instrument in the bill, upon which the suit is based, or parol. It is obvious that this would not do.

Whitfield, C. J., concurs also with Shackle-ford, J. Parkhill, J., absent on account of illness.