UNITED STATES FIDELITY & GUARANTY COMPANY, A CORPORATION, PLAINTIFF IN ERROR,
v.
DISTRICT GRAND LODGE NO. 27 OF THE GRAND UNITED ORDER OF ODD FELLOWS, A FRATERNAL CORPORATION, DEFENDANT IN ERROR
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United States Fidelity & Guaranty Company sought to enforce a bond indemnifying a fraternal organization against officer dishonesty. The Florida Supreme Court reversed judgment for the plaintiff, holding that the declaration failed to allege performance of conditions precedent to liability on the bond.
A declaration on a bond with conditions precedent must allege the performance of all conditions precedent or provide a valid excuse for non-performance. The failure to make such allegations renders the declaration subject to demurrer and states no valid cause of action.
“A declaration in an action at law should allege every fact that is essential to the plaintiff's right of action.”
Establishes the fundamental pleading requirement that declarations must contain all material allegations
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Join FLexlaw to unlock all legal intelligenceUSF&G issued a bond to indemnify District Grand Lodge No. 27 against losses from fraud or dishonesty of one of its officers amounting to larceny or em…
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Whitfield, C. J.
This is an action on a bond with collateral conditions given by the plaintiff in error to indemnify the defendant in error against loss “by reason of fraud or dishonesty of” one of its officers “amounting to larceny or embezzlement.” The bond contains a num ber of conditions some being precedent to liability, and while there are allegations that the plaintiff performed conditions as to notice of the embezzlement and proof of loss as required by some of the conditions of the bond, there is no general or specific allegation of the performance of all of the conditions precedent to liability.
A demurrer was filed to the declaration upon the grounds that it stated no right of action, and that a statement referred to in the bond incorporated in the declaration “should have been declared upon along with the bond and as part thereof.” This demurrer was overruled. Verdict and judgment were rendered for the plaintiff and the defendant took writ of error. A declaration in an action at law should allege every fact that is essential to the plaintiff’s right of action. Milligan v. Keyser, 52 Fla. 331, 42 South. Rep. 367; South Florida Tel. Co. v. Maloney, 34 Fla. 338, 16 South. Rep. 280; Savannah, F. & W. R. Co. v. Willett, 43 Fla. 311, 31 South. Rep. 246; Bennett v. Herring, 1 Fla. 387; Hoopes v. Crane, 56 Fla. 395, 47 South. Rep. 992.
Where an action is brought upon a bond with collateral conditions and the bond contains conditions to be performed by the plaintiff precedent to the liability of the defendant, the declaration should allege the performance of conditions precedent, or a valid excuse for non-performance; and the failure to so allege renders the declaration subject to demurrer. See Milligan v. Keyser, supra; Thompson v. Kyle, 39 Fla. 582, 23 South. Rep. 12, 63 Am. St. Rep. 193; Myrick v. Merritt, 22 Fla. 335; Sanford v. Cloud, 17 Fla. 532; 5 Cyc. 814; 9 Cyc. 721; 31 Cyc. 107; Day’s Com. Law Proc. (4th ed.) p. 91; 4 Ency. Pl. & Pr. 628.
Failure to allege the performance of conditions precedent or to allege an excuse for non-performance is not made a separate ground of the demurrer, but as it is the duty of the plaintiff to make his right to recover on the bond appear by the declaration, the general statement in the demurrer that no right of action appears is sufficient in this case, for a mere reading of the declaration discloses the omission of the essential allegation that conditions precedent have been performed or excused. Benedict Pineapple Co. v. Atlantic Coast Line R. Co., 55 Fla. 514, 46 South. Rep. 732, 20 L. R. A. (N. S.) 92; see also Hall v. N. & S. Co., 55 Fla. 242, 46 South. Rep. 178; F. C. & P. Ry. Co. v. Ashmore, 43 Fla. 272, 32 South. Rep. 832.
The performance of conditions precedent may under the statute be alleged generally, and the opposing party is then required to “specify in his pleading the condition precedent the performance of which he intends to contest.” See 1436 Gen. Stats, of 1906. But matters of excuse for non-performance are not covered by the statute and they should be stated specially as required by the rules of pleading at common law. See Day’s Common Law Proc. Act (4th ed.) 91.
The declaration being defective the judgment is reversed.
Shackleford and Cockrell, JJ., concur. Taylor, Hocker and Parkhill, JJ., concur in the opinion.
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Citator
Cited By
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Ballas v. Lake Weir Light & Water Co., 100 Fla. 913 (Fla. 1930)…ce of such conditions must be alleged, or a valid excuse for nonperformance should be stated and a failure to so allege renders the declaration subject to demurrer. 2 Ency. Pl. & Pr. 999; U. S. Fidelity & Guaranty Co. v. District Grand Lodge No. 27, 58 Fla. 373, 50 So. R. 952; Milligan v. Keyser, 52 Fa. 331, 42 So. R. 367; Myrick v. Merritt, 22 Fla. 335; 4 Ency. Pl. & Pr. 628. In determining whether or not the court erred in sustaining the demurrer to the said several counts of the declaration as finally…
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Sylvester v. Lichtenstein, 61 Fla. 441 (Fla. 1911)
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Plowden & Roberts, Inc. v. Conway, 192 So. 2d 528 (Fla. 4th DCA 1966)…e or occurrence of conditions precedent with particularity not required by the rules. When this is done,, the sufficiency of the particular allegations, may be tested by motion to dismiss. United States F. & G. Co. v. Dist. Grand Lodge No. 27, 1909, 58 Fla. 373, 50 So. 952. The provisions of the above rule permitting general allegations have not altered the rule that the sufficiency of the allegations, may be tested by motion to dismiss. Wagman v. Lefcoe, Fla.App.1964, 167 So. 2d 765. The requirement in th…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Hoopes v. Crane, 56 Fla. 395 (Fla. 1908)
- Benedict Pineapple Co. v. Atl. Coast Line R.R. Co., 55 Fla. 514 (Fla. 1908)
- Sanford v. Cloud, 17 Fla. 532 (Fla. 1880)
- Thomson v. Kyle, 39 Fla. 582 (Fla. 1897)
- Fla. Cent. & Peninsular R.R. Co. v. Ashmore, 43 Fla. 272 (Fla. 1901)
- Milligan v. Keyser, 52 Fla. 331 (Fla. 1906)
- Savannah v. Willett, 43 Fla. 311 (Fla. 1901)
- Archibald T. Bennett v. Herring, 1 Fla. 387 (Fla. 1847)
- S. Fla. Tel. Co. v. Maloney, 34 Fla. 338 (Fla. 1894)
- Myrick v. Merritt, 22 Fla. 335 (Fla. 1886)