Gunning v. Heron

Heron lias sued Gunning, the declaration being in the common counts. The third plea is intended as one of payment to the entire cause of action, except the sum of $92.43, and though, at least, inartificially drawn in that it pleads the receipts or evidences of payment with the denial of the indebtedness, instead of the fact of payment, it cannot be regarded as frivolous. Though a receipt may be shown to have been given through mistake, or to be, for other reasons, of no effect as to the creditor or the claim he asserts, yet a genuine receipt is prima facie evidence of the settlement of the claim covered by it. This plea being evidently intended as one of payment, and consequently one of new matter, the plaintiff, if he proposed to treat it as issuable, should under the practice in this State, have replied to it before going to trial, as he did when he was in default in pleading and in the absence of the defendant, and as if he had joined issue on the pleas. Benbow vs. Marquis, 17 Fla., 441; McKinnon vs. McCollom, 6 Fla., 376; Livingston vs. L’Engle, 22 Fla., 427.

It is suggested in the brief of plaintiff in error that judgment may be entered in this court in favor of defendant in *849error for the sura of $92.43. If the plaintiff Heron desires he may, in view of the suggestion stated, enter a remittitur of the amount of the judgment over and above the sum of $92.43, within thirty days after the filing of the mandate in the clerk’s office of the Circuit Court of Orange county, and upon the same being so entered there the judgment of that court will stand for said sum of $92.43 and costs, as of the date of the entry of said judgment, to be enforced according to law, but in default of his filing said remittitur, the judgment and verdict will be held to be set aside, and the case will stand in that court for further proceedings consistent with this opinion and conformable to law.