State v. Hutchins

• Decision Date: 02 June 1931
• Citation: 101 Fla. 773,135 So. 298
• Parties: STATE ex rel. WASHBURN et al. v. HUTCHINS, County Judge, et al.
• Court: Florida Supreme Court

135 So. 298

101 Fla. 773

STATE ex rel. WASHBURN et al. v. HUTCHINS, County Judge, et al.

Florida Supreme Court

June 2, 1931

Commissioners' Decision.

Petition by the State, on the relation of F. B. Washburn and another for a writ of prohibition prayed to be directed to Victor Hutchins, County Judge and ex officio Judge of the County Court of Orange County, to prohibit further proceedings in the case of McKenney-Rylander, Inc., against the petitioners.

Demurrer to the petition overruled, and a peremptory writ of prohibition issued.

COUNSEL Dickinson & Dickinson, of Orlando, for petitioners.

Maguire & Voorhis, of Orlando, for respondents.

OPINION

MATHEWS C.

Petition for writ of prohibition filed in this court sets forth, in substance, that on August 27, 1929, McKenney-Rylander, Inc. filed its petition in the county court of Orange county Fla., as authorized by section 5400(3536), Compiled General Laws of Florida 1927, seeking to have F. B. Washburn and Metha K. Washburn removed from certain premises for default in payment of rent, after three days' notice in writing requiring the payment of such rent or the possession of the premises; that respondents F. B. Washburn and Metha K Washburn filed their plea in the court below denying that they owed McKenney-Rylander, Inc., any rental for the said premises and averring that their only relations with McKenney-Rylander, Inc., with reference to the property involved were contained in a contract entered into between the said Washburn and McKenney-Rylander, Inc., marked 'Exhibit A' and made a part of said plea, which, save as to testimonium and attestation clauses, signature, seal, and acknowledgment, is of the following tenor:

'This agreement, made and entered into, this 28th, day of July, A. D. 1927, by and between McKenney-Rylander Incorporated, a corporation, organized and existing under the laws of the State of Florida, with its principal office in Orlando, Florida, party of the first part, and F. B. Washburn and Metha K. Washburn, his wife, of Orlando, Orange County, Florida, parties of the second part.

'Witnesseth, that for and in consideration of the sum of ($1.00) dollar paid each to the other, party of the first part agrees to remodel and equip the store location in the McKenney-Rylander Building at the corner of Orange Avenue and Washington Street, now known as No. 9 and No. 11 West Washington Street, according to plans which have been submitted and accepted by parties of the second part for the purpose of operating a tea room.

'Parties of the second part agree to accept and operate the tea room so remodeled and equipped for a period of three years from the date of this agreement and to render to party of the first part each week a detailed statement and report of the volume of business done each day over the past week, said report to contain the number of patrons served, amount of cash taken in and the cash balance in the bank, together with a statement of all expenses and disbursements over the period and when there is such an accumulation of funds that would justify a distribution between party of the first part and parties of the second part a disbursement will be made on the following basis.

'Parties of the second part are to draw in salaries an amount equalled to, but not greater, than an amount to be paid to party of the first part as rental, at which time party of the first part is to receive a like amount as rental, and such net balance, after payment of all expenses for maintenance and operation, shall be divided equally between party of the first part and parties of the second part, reserving a reasonable amount for operating and maintenance expenses.

'The amount fixed for rent during the life of this contract is not to exceed three hundred ($300.00) dollars per month, against which a like amount may be drawn from the funds by parties of the second part as an offset to the amount charged as rent.

'Party of the first part agrees to remodel, equip and furnish the above mentioned store rooms in a neat, substantial and satisfactory manner, to be thoroughly equipped with such articles as are necessary for the proper operation of a tea room, it being understood that all fixtures and equipment remain the property of the party of the first part and such broken or damaged fixtures or equipment are to be replaced from time to time from the maintenance fund.

'It is mutually understood and agreed that party of the first part have the right to confer with parties of the second part at any time with regard to the operation of said tea room, though the general supervision and operating is to be entirely in charge of parties of the second part.

'It is mutually understood and agreed by the parties hereto that neither party shall have the right to sell their equity or interest under this contract to anyone without first offering the other party an option to purchase the other's interest, nor will either party have the right to sell their interest without first...