Opinion
No. 1733.
August 10, 1960.
Appeal from the Circuit Court of Palm Beach County, Culver Smith, J.
Kenneth M. Dix, Hallman Dix, Boca Raton, for appellant.
Hal H. McCaghren and Albert Yurko, West Palm Beach, for appellee.
The appellee, as plaintiff in the lower court, filed a complaint alleging that the appellant-defendant owed plaintiff $880 according to a check attached to the complaint. The defendant answered denying the allegations of the complaint but, by affidavit, admitted the truth of the allegations and sought to set up an affirmative defense of conditional delivery by virtue of a collateral agreement. The plaintiff took the deposition of the defendant which was filed in support of plaintiff's motion for summary judgment. The lower court entered an order granting plaintiff's motion for summary judgment.
In his order, the lower court stated:
"* * * The deposition and affidavit filed by the Defendant actually admits the truth of this allegation, but seeks to set up an affirmative defense of conditional delivery or a collateral agreement. Such defensive matter cannot be introduced under the pleadings as they exist herein, and therefore no defense is interposed by a deposition or affidavit of the Defendant, but actually the allegation previously quoted is, in effect, admitted * * *."
We have examined the briefs of counsel and the record in this cause and heard oral argument at the bar of this court. From our perusal of the record, we have reached the conclusion that no reversible error appears in the record and the lower court should be affirmed.
Affirmed.
ALLEN, C.J., KANNER, J., and REVELS, P.B., Associate Judge, concur.