Braxton v. Liddon , 49 Fla. 280 ( 1905 )

Hocker, J.,

(after stating the facts.)

The first assignment of error challenges- that part of the decree of the Chancellor in which he struck from the files the supplemental answer -of the defendant Braxton! This supplemental answer was filed without a motion or cause shown after notice, and without leave or order of the judge, and was, therefore, filed in violation of Rule 61 of the Rules of the Circuit Courts in Equity. The. Chancellor did not err in striking it from the files.

The' next assignment of error questions the decree rendered in favor of the complainants. The cause was set down for hearing by complainants below, and heard upon the bill, answer and exhibits; no testimony having been taken by either party.

Unless it can be held that the language of the instrument sued on creates an estoppel against the defenses of the answer, then the question presents itself as to the sufficiency of the defenses, and the further question whether the burden of proof as to the consideration was not thrown upon the complainants. That language is as follows: “It is expressly covenanted and agreed that the vendors do not warrant the aforesaid fertilizers as to quality or its effect upon crops or otherwise, but that the same is bought on my (vendee’s) judgment with all faults at my í’isk. I admit that I have personally examined each and every package of said fertilizer, and that it has been duly analyzed and inspected and is labelled and tagged as required by law,” &c.

Chapter 4983, laws of 1901, provides for the inspection and analysis of fertilizers and regulates their sales. The act is intended to protect those who buy fertilizers, and by its fourth section makes it a misdemeanor for any manufacturer or dealer to misrepresent the proportion of ammonia, phosphoric acid , or potash or other ingredients contained in such fertilizers. We are of opinion that the language of the instrument sued on does not operate as an estoppel. To give it that effect would be putting it in the power of manufacturers and dealers to require buyers to sign contracts, which would practically nullify the provisions of Chapter 4983, and would aid in the enforcement of contracts which are plainly against public policy. 15 Am. & Eng. Ency. Law (2nd ed.) 1014; 9 Cyc. 474, et seq, and cases cited; Pacific Guano Co. v. Mullen, 66 Ala. 582: Prescott v. Battersby, 119 Mass. 285; Strand v. Griffith, 97 Fed. Rep. 854; Cook v. Fernandez, 11 Fla. 100; Bryan v. Dennis, 4 Fla. 445. We are also of opinion that the first and second paragraphs of the answer taken in connection with the fifth set up good defenses to this suit, if they shall be found to be time, and we are still further of opinion that the first paragraph sufficiently sets up the defence of a failure of consideration, which under the rule of this court imposed the burden of proof upon the complainants to overcome this defence. Kellogg v. Singer Manufacturing Company, 35 Fla. 99, 17 South. Rep. 68.

This case having been finally heard, and the decree, having' been made on the bill, answer and replication, without testimony, it follows that the court below erred in making the decree in favor of the complainants.

The decree is reversed with directions for such other proceedings as may be in accordance with equity.

, Taylor and Cockrell, JJ., concur. Whitfield, C. J., and Shackleford, J.. concur in the opinion. Parkhill, J., disqualified