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poration under the laws of Florida. A copy of the bond is annexed as a part of the declaration.

The appellants demurred to the declaration as not setting forth any cause of action against defendants. The order overruling this demurrer is assigned as error under the act of March 5, 1883, c. 3430.

Counsel for appellant, after setting out the condition of the bond in his brief, says it is clear that the defendants' obligation was to pay in the event of the failure of Booske to pay for ice to be delivered under the above agreement. He then argues that the obligation of the original Gulf Ice Company, the obligee in and assignor of the bond, was to deliver ice to Booske "in such quantities as the said August Booske may receive it," and that this language is too vague to enable the court to say what was the agreement of the company as to the delivery of ice to Booske; that the obligors in the bond are only liable in a suit brought "on that instrument for the indebtedness of Booske for ice delivered under the above agreement."

It is patent that the obligation of the bond is to pay all sums due for ice actually delivered to and not paid for by Booske. As we understand counsel, he takes as a premise an assumption of vagueness in the language first quoted by him from the bond, and from this infers that there was an agreement, either oral or written, between Booske and the ice company, as to delivery of ice, and that there has been a failure to set out this agreement intelligibly in the condition of the bond. We are unable to see any vagueness in the agreement upon the part of the company as set out in the bond to deliver ice during the coming season to Booske for sale at retail price, not exceeding 75 cents per hundred pounds, in such quantities as he may receive from it, nor does counsel point out wherein the vagueness lies. The meaning as to the quantity to be delivered is plain; the company was to deliver so much as Booske would take or receive for sale at retail price. The meaning of the expression, "the coming season," was doubtless perfectly understood by the parties, and is not unintelligible to the court; but it is entirely immaterial here, for the demurrer must be taken as admitting that the ice the price of which is sued for was delivered during the period meant by such expression.

There is nothing in the bond that suggests the existence of any agreement between the company and Booske as to the delivery of ice, other than that which is embodied in its condition, and it is consequently not necessary to discuss the question whether or not any agreement of different effect could, under different circumstances, be set up by Booske or his sureties in an action on the bond. Miller v. Elliott, 1 Ind. 484.

In Bellas v. Keyser, 17 Fla. 100, it was held that a paper in the following words: "I hold for account of ship Kalliope the sum of one hundred and eighty-three dollars and twenty cents for towage to sea of said ship," and signed by the party executing it, was a mere memorandum upon which assumpsit would not lie, unless extrinsic facts were averred and proved, not inconsistent with the terms of the writing, but explaining and rendering it intelligible and capable of enforcement as a contract to pay money. The decision in Merritt v. Wittich, 20 Fla. 27, was, among other points, that the measure of the damages to be recovered in the action for breach of the contract sued on was controlled by the difference of the value of the timber in the market where the contract was made and the timber delivered, (Pensacola, Fla.,) and that evidence of the difference of such value at Liverpool, England, was not admissible. These cases cited by counsel for appellee contain nothing that throws any doubt upon the sufficiency of the declaration before us. The bond is entirely different from the memorandum in the former case, and the declaration is not materially, if at all, deficient in the statement of facts material to a cause of action under it. Besides this, there is no doubt of the right of the plaintiff as the assignee of original obligee in the bond to sue in its own name under the act of 1881, c. 3241, (McClel. Dig. § 72, p.

829,) if there was any as to such right under the act of November 23, 1828, (section 86, p. 832, McClel. Dig.) Bellas v. Keyser, supra. It is unnecessary to comment upon Merritt v. Wittich.

After the overruling of the above demurrer the defendant filed 12 pleas, the first, second, seventh, eighth, and twelfth of which are as follows:

(1) That by the terms of the agreement mentioned in said bond the obligees thereof promised the said Booske not to compete with him in retailing ice in the city of Pensacola during the season mentioned in said bond, but that before the alleged assignment of the bond, and during the said season, the obligees did compete with said Booske in retailing ice in the city of Pensacola. (2) That by the terms of the agreement mentioned in said bond the obligees thereof promised to let defendant Booske have, during the season mentioned, all the ice he required in his business, whenever they had it; but during said season, and before the alleged assignment of the bond, refused to let him have ice when he required it, and when they had it.

(7) That said obligees did not during the said season deliver ice to said Booske for sale at retail, as he should receive it.

(8) That said obligees did not during said season deliver ice to said Booske as by the terms of the said bond they were required to do, but neglected and refused so to do.

(12) That at the time they signed the said bond the said obligees held themselves out to be, and were believed by these defendants to be, a corporation, and that these defendants and said obligors meant and intended that the said obligees should by the terms of the said bond bind themselves to a corporation, and to no other person.

These pleas were demurred to as containing no defense to the action, and the demurrer was sustained.

As to the first and second pleas, it is urged by counsel for appellant that, the declaration failing to explain what the agreement mentioned in the declaration is, they are filed to bring such agreement more fully before the court, and show that the contingency upon which the bond was to be forfeited has not arisen. The agreement mentioned in the bond, he says, is a part of it; citing Wait, Act. & Def. 681. In volume 1 of Wait's Actions & Defenses, p. 681, (the volume which we conclude from our investigation that counsel intended to refer to,) it is said, citing U. S. v. Maurice, 2 Brock. 96, that if the condition of the bond, instead of specifying the particular purposes for which the bond is given, refers to a paper which does specify them, it is equivalent to the enumeration of these purposes in the bond; and-citing Hughes v. Saunders, 3 Bibb, 360; Nichols v. Douglass, 8 Mo. 42; Shermer v. Beale, 1 Wash. (Va.) 11; Gordon v. Frasier, 2 Wash. (Va.) 130—so an agreement entered into at the same time that a bond is executed, and indorsed thereon, must in equity be considered a part thereof.

There is nothing in the case before us to bring it within the doctrine thus announced in Mr. Wait's work. Upon the face of the bond it is perfectly clear that the agreement referred to in the condition of the bond as the "above agreement" is that set out or recited in it just above the quoted words.

In Miller v. Elliott, supra, it is held that a plea which sets up a contract different from and contradictory to the statements in the bond is bad, and may be taken advantage of on demurrer. It is a common rule, well established, that, in an action on a bond between the parties thereto, they are controlled by the recitals therein with reference to which the contract is made. Carpenter v. Buller, 8 Mees. & W.208; Fletcher v. Jackson, 23 Vt. 581; Bennehan v. Webb, 6 Ired. 57; Hoke v. Hoke, 3 W. Va. 561; 1 Wait, Act & Def. 680. This bond is perfect, in so far as the undertaking of the parties thereto is concerned. It does not connect itself with any other instrument, nor can parol evidence be resorted to for such purpose. Bell v. Bruen, 1 How. 169; Eckman v. Brash, 20 Fla. 763. The pleas are utterly deficient in showing any

agreement connected with the bond, or referred to by it. They attempt to set up something entirely different from what the sureties on the bond undertook under their hands and seals to be responsible for, and instead of doing it by a direct and issuable allegation of the making of such additional agreement by the parties, and when it was made, it is done in a manner too vague to entitle it to approval, under the rules of pleading, if it were permissible at all.

The seventh and eighth pleas are claimed to tender an issue upon the allegation made in the declaration of performance by the assignors of the bond, the original Gulf Ice Company; and it is argued that, if they did not deliver ice to Booske as required by the agreement, there is no liability on the bond according to its terms, as set forth in the declaration.

It will be observed that the declaration does not allege a delivery of ice during the entire season covered by the agreement set out in the bond, but, on the contrary, it admits having ceased to furnish ice on account of the failure of Booske to comply with his part of the agreement; and the action before us is on the bond to recover the sum due for ice actually furnished under the agreement; and, if there is anything due by Booske for ice so delivered, the obligors on the bond are by its terms liable for such sum. . The pleas do not deny the delivery of ice to the value sued for, nor its acceptance; nor that it was on account of Booske's default in complying with the agreement that the company stopped delivering ice; and, in the absence of such denials, the pleas deny nothing that is not admitted by the declaration. It is moreover not pretended by the pleas that any damage has been sustained by Booske, or any one, from the company's ceasing to deliver ice. The result is, considering the declaration and pleas, that Booske has received and accepted ice to the value stated, under the agreement, and has not paid for it, nor have the sureties in the bond. Should he be permitted to keep it without paying for it?

Even if one party, without the fault of the other, fails to perform his side of a contract in such a manner as to enable him to sue upon it, yet if the other party has derived a benefit from the part performed it would be unjust to allow him to retain that without paying anything, and the law will generally imply a promise on his part to pay such remuneration as the benefit conferred upon him is reasonably worth; and, to recover that quantum of remuneration, an action of indebitatus assumpsit is maintainable by the party so failing to perform his part of the contract. 2 Pars. Cont. (7th Ed.) 523.

In the case before us the plaintiff has a right of action upon the bond. Courts construe and enforce contracts according to what they show the intention of the parties to have been, (Id. 521,) and it is clear that the intention of the parties was that the obligors upon this bond should, in case of the default of Booske, pay any sum due by him to the ice company for ice received and retained by him. 2 Benj. Sales, (4th Amer. Ed.) § 1032, and note 19.

The twelfth plea alleges no fraud upon the part of the original ice company, the obligee in the bond, nor any damage to the defendants, the obligors therein, or to any of them. It virtually admits that such company was not a corporation. Booske has received the ice sued for, and neither he nor his sureties should, in the absence of a controlling principle of law to the contrary, be released from paying for it on account merely of an innocent mistake which has neither done, nor can do, either of them any harm.

A person who has contracted with an association assuming to be incorporated and acting in a corporate capacity cannot, after having received the benefit of the contract, set up as a defense to an action brought by such company that the latter was not legally incorporated, or had no authority to enter into the contract in a corporate capacity. 2 Mor. Priv. Corp. §§ 750-752. It is settled that a conveyance by a corporation will not be treated as invalid merely because the corporation was not formed under authority of law, and the same rule applies to transfers of personal property and choses in actions by corpora

tions de facto. Id. §§ 753, 754, and citations. If the defense cannot be made against the illegal corporation, it, of course, cannot be maintained against its assignee.

The judgment is affirmed.

MORRIS v. BEALL.

(Supreme Court of Alabama. January 7, 1889.)

1. APPEAL-PRACTICE-ASSIGNMENT of Error.

An assignment of error to the overruling of a plea in abatement, which does not set out the form of the plea, nor show upon what ground it was overruled, cannot be considered.

2. PLEADING-GENERAL Demurrer.

A general demurrer, which fails to state distinctly the special grounds of objeotion, as required by Code Ala. 1886, § 2690, is properly overruled.

Appeal from criminal court, Jefferson county; S. E. GREENE, Judge. Petition by F. W. Beall, filed before the judge of the criminal court of Jefferson county, for a writ of prohibition restraining John Morris, a justice of the peace, from taking jurisdiction of a civil proceeding. On final hearing the writ was made absolute, and Morris appeals.

B. M. Allen, for appellee.

SOMERVILLE, J. The present appeal is taken from a judgment of the criminal court of Jefferson county granting a writ of prohibition against a justice of the peace, restraining him from taking jurisdiction of a civil proceeding. It is contended that the judge of this court has no power to grant a writ of prohibition in such a case, which is the exercise of a civil, as distinguished from a criminal, jurisdiction. The argument is that the act approved February 18, 1887, entitled "An act to establish the criminal court of Jefferson county," (Acts 1886-87, pp. 835-841,) purports on its face to confer jurisdiction only in matters of criminal procedure, and that the clause contained in section 2 of the act, which provides "the judge shall have and exercise all the jurisdiction and powers which are or may be hereafter lawfully exercised by judges of the circuit courts of the state," is foreign to the title of the act, and not clearly expressed in it, and that for this reason it is void for repugnancy to section 2 of article 4 of the constitution, which declares that "each law shall contain but one subject, which shall be clearly expressed in its title." Const. 1875, art. 4, § 2; Code 1886, p. 26, and cases there cited. We may admit this contention for the purposes of this case, and yet the judgment must be affirmed, for the following reasons:

There are but two errors assigned, and the question of the constitutionality of the law is not raised by either of them. The first assignment of error is based on the overruling by the court of a plea in abatement to the jurisdiction of said court "on the ground that said judge had no right to hear and pass on any civil matter." The form of the plea is not set out in the record, nor is it stated upon what ground it was overruled by the court. We cannot say, without an inspection of the plea, that the court erred in overruling it. It may have been defective, in substance, for various reasons, or may have been filed too late.

The only other assignment of error is the overruling by the court of the demurrer to the appellee's petition. This demurrer was general, and failed to state distinctly the special grounds of objection to the petition as required by the statute. Code 1886, § 2690; 3 Brick. Dig. pp. 704, 705, §§ 65-84. The judgment must be affirmed.

YOUNG et al. v. ARNTZE et al.

(Supreme Court of Alabama. January 8, 1889.)

1. PLEADING COMPLAINT AMENDMENT.

Where, in an action for breach of contract, counts for goods sold and on account stated are stricken out for misjoinder, it is proper to allow an amendment, adding a second count for breach of the contract.

2. CONTRACTS-ACTION FOR BREACH-EVIDENCE.

Plaintiffs sold to defendants machinery, in consideration of which defendants agreed to deliver lumber to plaintiffs on the side track at a certain point on a railroad. In an action for breach of the contract, where defendants seek to rescind the same on account of fraud, held, that evidence that no side track had been built, and that defendants, before they offered to rescind, knew that none would be built, is immaterial.

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Evidence as to a witness' negotiations to purchase the machinery from plaintiffs after the alleged rescission by defendants is admissible as tending to show plaintiffs' consent to a rescission, and a waiver of the right to a return of the machinery.

4. SAME.

Evidence that such witness informed one of defendants that he was to buy the machinery, and gave him permission to use it, is material, as explaining the use of the machinery by defendants after offer to return it. 5. EVIDENCE-HEARSAY.

Evidence that an expert told defendants that they could not run the machinery. because they had constructed the furnace improperly, is hearsay, and inadmissible. 6. CONTRACTS-RESCISSION-FRAUDULENT REPRESENTATIONS.

If plaintiffs induced the sale by misrepresentation of any material fact upon which defendants had the right to and did rely, defendants may rescind, or prove the fraud in reduction of damages.

7. SAME-PROMPT EXERCISE OF RIGHT.

The right to rescind must be exercised within a reasonable time after discovery of the fraud.1

8. SAME-OFFER TO RETURN PROPERTY PURCHASED.

In order to rescind, defendants must return, or offer to return, the machinery to the place where the trade was consummated by delivery.1

9. SALE-ACTION FOR PRICE-BREACH OF WARRANTY.

If there was no rescission, and the machinery were of any value, the action could not be wholly defeated on the ground of fraud and breach of warranty.

Appeal from circuit court, Morgan county; H. C. SPEAKE, Judge. Action by George Arntze & Bros., against William J. Young and others, for the breach of contract. The original complaint joined a count founded on the breach of the contract with other counts founded on contract for goods sold and delivered, for account stated, and on open account. The defendant demurred for misjoinder of counts and causes of action. The court sustained the demurrer, whereupon plaintiffs amended by striking out the counts on contract, and adding a second count for breach of a contract.

The defendants moved to strike out the amended complaint, because the same was a departure from the original action, as contained in the several counts stricken out. The court overruled this motion, whereupon defendants excepted, and then pleaded the general issue; want of consideration; failure of consideration; fraud; breach of warranty; recoupment; and rescission of contract. Issue was joined on these pleas.

The contract, as stated in the amended complaint, was that plaintiffs sold defendants certain saw-mill machinery "in the condition in which they then were, and which were then at the plaintiffs' mill in Decatur, Ala., and plain

1The right to disaffirm a contract for fraud must be exercised promptly after its discovery. Dennis v. Jones, (N. J.) 14 Atl. Rep. 913. On the general subject of the rescission of contracts on the ground of fraud, and the necessity of offering to place the other party in statu quo, see note, Id.; Gray v. Bowman, (N. J.) 14 Atl. Řep. 905, and note; Gridley v. Tobacco Co., (Mich.) 39 N. W. Rep. 754, and note.

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