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Clutter Construction Co. v. Naples Builders Supply Co.

District Court of Appeal of Florida, Third District
Aug 18, 1964
166 So. 2d 813 (Fla. Dist. Ct. App. 1964)

Opinion

No. 64-137.

August 18, 1964.

Appeal from the Circuit Court for Dade County, Robert H. Anderson, J.

Robert L. Koeppel and Marvin S. Maltzman, Miami, for appellant.

Walters, Moore Costanzo and Arthur D. Deckelman, Miami, for appellee.

Before BARKDULL, C, J., and HORTON and TILLMAN PEARSON, JJ.


Clutter Construction Company, Inc., was sued for goods sold. The complaint annexed a fully itemized statement of the account. For its answer the defendant plead a general denial, and added "never was indebted." At the trial the defendant attempted to cross examine plaintiff's witness as to the quality of the goods delivered. The court sustained plaintiff's objection upon the basis that there was no pleading raising an issue of set-off for inferior goods. This ruling was repeated when defendant attempted to offer evidence of a dispute between the parties as to "strength of the concrete delivered."

These rulings are the basis for defendant's appeal from the final judgment for plaintiff. We find that no error has been shown because Rule 1.11(b), Florida Rules of Civil Procedure, 30 F.S.A., directs that "Every defense, in law or fact, to a claim for relief in any pleading * * * shall be asserted in the responsive pleading * * * except" (here follows seven exceptions each inapplicable here).

The plaintiff, Naples Builders Supply Co., Inc., cross assigns error upon the court's failure to direct the jury to assess interest. It is true that the plaintiff did "ask the court" to include interest but at the time of its motion for directed verdict, it had offered no evidence as to interest. Therefore, the court did not err in failing to compute and include the interest claimed. Cf., Shoup v. Waits, 91 Fla. 378, 107 So. 769.

The judgment is affirmed.

Affirmed.


Summaries of

Clutter Construction Co. v. Naples Builders Supply Co.

District Court of Appeal of Florida, Third District
Aug 18, 1964
166 So. 2d 813 (Fla. Dist. Ct. App. 1964)
Case details for

Clutter Construction Co. v. Naples Builders Supply Co.

Case Details

Full title:CLUTTER CONSTRUCTION COMPANY, INC., A FLORIDA CORPORATION, APPELLANT, v…

Court:District Court of Appeal of Florida, Third District

Date published: Aug 18, 1964

Citations

166 So. 2d 813 (Fla. Dist. Ct. App. 1964)

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