Ballas v. Lake Weir Light & Water Co.
| Decision Date | 18 October 1930 |
| Citation | 130 So. 421,100 Fla. 913 |
| Court | Florida Supreme Court |
| Parties | BALLAS v. LAKE WEIR LIGHT & WATER CO. |
Commissioners' Decision.
Error to Circuit Court, Marion County; W. S. Bullock, Judge.
Action by C. G. Ballas against the Lake Weir Light & Water Company. Judgment sustaining a demurrer to the declaration, and plaintiff brings error.
Affirmed.
Shipp, Evans & Kline, of Miami, for plaintiff in error.
The plaintiff in error, hereinafter referred to as the plaintiff instituted an action at law against the defendant in error hereinafter referred to as the defendant. The plaintiff abandoned in the lower court the first, second, third, and tenth counts of his second amended declaration, and a demurrer was sustained by the court to the fourth, fifth sixth, seventh, eighth, and ninth counts thereof.
The fourth and fifth counts are based upon an instrument in writing in words and figures as follows:
'Out of the above amounts it is my understanding that you have authorized Mr. Louis B. Magid to deduct therefrom and issue in lieu thereof, participating interest in the corporation, syndicate or trusteeship that he will organize to take over and market this property, the following amounts:
| Bay Realty Company | $11,250.00 |
| E. H. Jarman | 5,000.00 |
| R. L. Barksdale | 3,000.00 |
| ---------- | |
| Total | $19,250.00 |
which will leave me to pay you in cash, as received from the cash payment, $13,500.00--divided as follows:
'Lake Weir Light & Water Co.
'[Corporate Seal of Lake Weir Light & Water Company]
'Witness:
'C. A. Savage, Jr.
'Lucile Potter, Secretary,
Lake Weir Light & Water Co.'
Each of said two counts declares upon the instrument substantially in the form prescribed by the statute for actions upon promissory notes, the fourth count alleging that the defendant, 'by its promissory note now overdue,' promised to pay, etc., and the fifth count alleging that the defendant, 'by its contract and agreement,' promised to pay, etc.; the allegations in both counts in other respects being the same. A copy of the said instrument is attached to the declaration as Exhibit A and made a part of each of said counts. Each of said counts further alleges that it is provided in said promissory note or contract and agreement, as the case may be, 'That when sale of the 930 acre tract was concluded he was to receive in cash from cash payment to be made by the purchaser, Magid, the sum sued for in this count, to-wit, $5458.33'; that the sale was never completed because the title was defective and the purchaser refused to make the cash payment mentioned in the instrument and refused to close for the purchase of the property because of such defect of title, and, 'therefore, that part of the contract providing for payment to plaintiff out of the cash payment to be made to defendant by Magid never became effective and was never operative in this connection'; that later the defendant by its duly authorized agent 'wrote to R. L. Barksdale and advised him that the title to said tract of 930 acres was not quieted and that no cash payments were ever received or would be received from Mr. Magid'; that title to the tract having failed, the commission was earned and was due and payable at once; and that the paper 'was given by the defendant to the plaintiff, and was executed for and in behalf of the defendant by its president and secretary, and under the corporate seal of the said corporation.'
The sixth count follows substantially the statutory form for declaring on a promissory note, and there is attached to and made a part of said count, as Exhibit B, a copy of the instrument in words and figures as follows:
'Messrs. E. H. Jarman, R. L. Barksdale, and C. G. Ballas,
'Miami, Fla.
'Gentlemen:
'In further consideration of you having effected the sale of 930 acres of land, more or less, belonging to L. W. L. & W. Co., to L. B. M., more fully described in a contract between the Lake Weir Light & Water Company and Louis B. Magid, and conforming to a certain map and sketch attached thereto, date Ocala, Fla., Dec. 4th, 1925, I. R. L. Martin, President of the Lake Weir Light & Water Co., agree to pay you each the following bonus:
'E. H. Jarman, $1,250.00
'R. L. Barksdale, $1,250.00
'C. G. Ballas, $1,250.00
'Signed by R. L. Martin, President, L. W. L. & W. Co.
'Signed by Lucile Potter, Secty. & Treas. L. W. L. & W. Co.
'[Seal of the corporation attached.]'
The count alleges that defendant promised to pay plaintiff the sum of $1,250 on the 4th day of December, 1925, and that the 'note sued upon was given by the defendant to the plaintiff, and was and is the note of the said defendant, and was executed for and in behalf of said defendant by its president and secretary and under the corporate seal of said corporation.'
The seventh count is similar to the sixth count, with the exception that the instrument is referred to as a contract and agreement instead of a note.
The eighth count alleges that the defendant was the owner of a tract of land comprising 930 acres for which the plaintiff, together with Bay Realty Company, E. H. Jarman, and R. L. Barksdale, at the request of the defendant, 'found a purchaser, ready, able and willing to buy the same * * * for the sum of $365,000.00;' that in consideration of such service, defendant agreed to pay certain sums to associates of plaintiff and agreed to pay plaintiff the sum of $5,458.33; and that the defendant executed and delivered to plaintiff its agreement and contract, a copy of which was attached to and made a part of the count, the same being the instrument first above set out in full. The count also contains allegations similar to those which we have stated herein following the form of the instrument in our statement as to the first and second counts, with the further allegation that the plaintiff had frequently demanded payment of said sum, but that the defendant had failed and refused to pay the same.
The ninth count contains, in substance, the allegations of the eighth count, and alleges further that the alleged purchaser was accepted by the defendant and that he entered into a binding contract with such purchaser for the sale of said property, receiving a cash payment on the purchase price.
The defendant demurred to the said fourth, fifth, sixth, seventh, eighth, and ninth counts of said declaration, basing its demurrer upon a number of grounds. Those assigned to the fourth, fifth, eighth, and ninth counts that are necessary to notice may be briefly summarized as follows:
1. The instrument declared upon is not a promissory note.
2. The obligation declared upon is not the defendant's, but the obligation of the parties who signed the same and designated themselves president and secretary, respectively, of the defendant corporation.
3. The allegations are repugnant or inconsistent in relation to matters of substance.
The grounds of the demurrer assigned by the defendant as applying to the sixth and seventh counts of the declaration are embraced within those applying to the other counts.
This court has repeatedly held that upon demurrer to a declaration containing several counts, if any one of them be good, the plaintiff is entitled to judgment on that count or to have the demurrer overruled (Barbee v. Jacksonville & A. Plank Road Co., 6 Fla. 262; Benedict Pineapple Co. v. Atlantic Coast Line R. Co., 55 Fla. 514, 46 So. 732, 20 L. R. A. [N. S.] 92; Hodges v. Hunter Co., 61 Fla. 280, 284, 54 So. 811, 34 L. R. A. [N. S.] 994); that every pleading is to be most strictly construed against the pleader thereof (American Fire Ins. Co. v. King Lbr. & Mfg. Co., 74 Fla. 130, 77 So. 168, affirmed 250 U.S. 2, 39 S.Ct. 431, 63 L.Ed. 810); that where a declaration does not wholly fail to state a cause of action, a demurrer thereto should not be sustained (McDonald v. Exchange Supply Co., 88 Fla. 80, 101 So. 28; Cummings Mach. Works v. Clark, 89 Fla. 383, 105 So. 100); and that when a declaration states a cause of action, surplus allegations not eliminated by appropriate motion may be disregarded ( Stinson v. Prevatt, 84 Fla. 416, 94 So. 656).
The test of the sufficiency of a declaration is whether it alleges distinctly every fact essential to the plaintiff's right of action; such facts to be characterized by certainty, clearness, and conciseness so that the material issue or issues may be determined quickly and with certainty, and that the defendant may be apprised of the charge against him with that degree of clearness and definiteness as will enable him to...
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