majority">Wills, Circuit Judge,

(after stating the facts.) — The rule in pleading is that a plea must be responsive to the declaration and must either traverse or confess and avoid the allegations of the declaration.

The firt assignment of error is that the court erred in sustaining plaintiff’s demurrer to the special plea. This plea attempts to set up an entirely different contract from that alleged in the declaration and attached as exhibits *209to the declaration and in order to prove the same it would be necessary to introduce parol evidence that would vary-the terms of the written instrument.

“When an instrument in writing sued on is set out in the declaration, in haec verba, a plea which adds conditions and stipulations thereto which are not included in said writing, and from which plea it is apparent that it is the foundation for the introduction of illegal evidence, is demurrable.”

There was no error in sustaining the demurrer.

The second assignment is the refusal of the judge to give a peremptory instruction for the defendant.

“In view of the fact that there was evidence tending to support the issues presented by the plaintiff, the defendant was not entitled to an affirmative instruction.” Florala Saw Mill Co. v. Simth, 55 Fla. 447, 46 South. Rep. 332.

The plaintiff in error also assigns as error that portion of the charge, to-wit: “If you believe from the evidence, from the weight of evidence, that this paper is a contract, a consummated contract, or the conclusion of a contract, for the sale and purchase of Mrs. Moore’s interest in the property, then of course the defendant is liable and your verdict should be for the plaintiff.” The argument is that this charge submitted a question of law to the jury that should have been decided by the judge. This would be unquestionably a sound contention and the charge standing alone would have been erroneous; but “in determining the correctness of a particular charge all the charges given should be considered and construed together.” Jacksonville Electric Co. v. Sloan, 52 Fla. 257, 42 South. Rep. 516.

The contention on the part of the defendant was that the agreement to pay as set out in the exhibit to the declaration was only an offer, and not accepted by the plain*210tiff, but the plaintiff claimed it was a completed agreement and it was to cover these contentions the charge was intended to apply, and when we consider this and take the charge in toto, which was as follows: “If you believe from the evidence, from the weight of the evidence that this paper i's a contract, a consummated contract, or the conclusion of a contract for the purchase of Mrs. Moore’s interest in that property, then of course the defendant is liable and your verdict should be for the plaintiff. On the other hand, if you find from the evidence that this Exhibit B is not a consummation or conclusion of a contract, but was intended for an offer that was not accepted by the plaintiff In this case as the plea alleges, then the defendant is not liable and your verdict should be for the defendant.” We see no error in the charge when taken as a whole.

Another assignment of error is the overruling of the motion for new trial. While the evidence was in direct conflict, where it has been passed upon by a jury and the judge who tried the case refuses a new trial, an appellate court will not reverse such finding where there is evidence which if believed by the jury would support the verdict.

We see no merit in the other contentions of plaintiff in error.

The judgment should be affirmed.

Per Curiam. — The record in this cause having been considered by this court, and the foregoing opinion prepared under Chapter 7837, Acts of 1919, adopted by the court' as its opinion, it is considered, ordered and adjudged by *211the court that the judgment herein be and the same is hereby affirmed.

Browne, C. J., and Taylor, Whitfield, Ellis and West, J. J., concur.

Citation profile

Relationships

How this case has been treated — in progress