Bernecker v. Bernecker
| Decision Date | 05 August 1952 |
| Citation | 60 So.2d 399 |
| Parties | BERNECKER v. BERNECKER. |
| Court | Florida Supreme Court |
Gramling & Gramling, Miami, for appellant.
Vernon W. Turner, Homestead, for appellee.
This is an unfortunate case which grew out of a dispute between father and son. It resulted in a bill filed by the father and mother against the son for the purpose of having the court declare a grove management contract between them terminated, for an accounting against the son and to enjoin him from going on the grove. The son filed an answer praying for affirmative relief. During the litigation, the mother died. After a reference to the Master, the taking of voluminous testimony, and the filing of a report by the Master, the Chancellor entered a final decree in favor of the father. This appeal is from that decree.
The father and mother owned and lived upon an 80-acre citrus grove, consisting of grapefruit, orange and lime trees. There were eleven children. All of them had left except one 50-year old son, who was an incompetent. The grove was in bad condition. The hurricane of 1945 did considerable damage which had not been repaired. It was starved and in a rundown condition for lack of fertilizer, spraying, pruning and attention necessary to keep a grove in good condition. The father was getting old and feeble and he proposed to the son that he take over the care and management of the grove, rehabilitate it, furnish all labor and fertilizer and other expenses, and pay the father the sum of $200 per month and take care of the mother, father and invalid son during the balance of their lives. In consideration of this the father and mother would convey, or will, to the son 40 acres of the grove, which 40 acres was pointed out to the son. The son was to build for himself a motor court on this land. All monies received from the sale of fruit, over and above the $200 per month to be paid to the father and $200 per month to be retained by the defendant for his services, would be divided equally between father and son.
The father advised his son that he had made the same proposition to another son who had rejected it. The son here, the appellee, accepted the proposal. The father later advised his son that he had reduced the proposal to writing. It was never signed nor exhibited so the son but was taken to a lawyer's office to be put in legal form. Based upon this verbal agreement the son took over the management of the grove and out of his own funds purchased trucks, tractors and other equipment, and furnished labor, fertilizer and spraying for the grove. Thereafter, the agreement was taken to a lawyer in Homestead, who advised the father that the agreement would not be legal because the 40 acres was part of a homestead but that a contract could be made in a different way. The father's lawyer was instructed to prepare a legal contract. Before the written contract was prepared and signed, the son paid to the father on April 1, 1947 $200, on May 1, 1947 $200, and on June 1, 1947 $200.
After the son had taken over the management of the grove, the father and mother decided to take a four-months trip to Pennsylvania. On May 7, 1947, the day before they left for Pennsylvania, the father and son went to the lawyer's office and found that the attorney had prepared a grove management contract which altered the original oral contract in that monthly payments were increased to $250 per month. There was nothing in the written contract about the son supporting the mother, father and invalid son and nothing with reference to the 40 acres of land. Before the contract was signed the father promised the son that he would have the agreement relating to the 40-acre tract prepared by his attorney who would send it to him in Pennsylvania and he would execute and return the same to his lawyer for delivery to his son. Testimony shows that the attorney was present when all of this took place and he was also present at the hearing and did not see fit to deny this testimony.
The day following the signing of the management agreement, the son took the mother and father to Pennsylvania. During the trip the father reiterated his promise with reference to the contract for the 40 acres. The son and his wife returned from Pennsylvania where the son continued to work on the grove.
In June, 1947, the son mailed a check for $250 to the father. Thereafter, the father wrote to the son and advised him not to make any more monthly payments as he had sold a piece of property and instructed the son to put the money in the grove, which the son did for a long period of time thereafter.
The father returned from his visit to Pennsylvania in October and more than a year after the execution of the written contract, the father asked the son how they stood and the son exhibited to the father his statements of receipts and expenditures. Thereafter, the father asked the son a total of about six times how they stood, and on each occasion the son showed the father his records consisting of receipts of money from the proceeds of the grove and receipts for expenditures. According to the undisputed testimony, the last time the father asked the son how they stood was in February, 1950. At that time he asked for some money. The son showed the father his statements of income from the sale of fruit, receipts for expenditures and told his father that back payments, which he owed to him and which had been deferred, amounted to about $9,000, which would be paid out of the proceeds of the fruit then on the trees which was ready to pick. At that time the son paid to the father the sum of $400. Up to this time there had never been any quarrels between father and son and they were on friendly terms. On April 21, 1950, and without any notice whatsoever, the father mailed to his son a letter stating that the father had abolished his son's job. Said letter is as follows:
April 21, 1950.
'Homestead,
'Mr. Frank H. Bernecker
'Homestead, Fla.
'Dear Sir:
'Very truly yours,
'(Signed) Frank L. Bernecker
'R. 2, Box 326
'Homestead, Florida.'
At the time of this letter, according to the uncontradicted testimony, there was fruit on the trees ready to be picked of the net value of $10,400, and also fruit on the trees for the 1950-51 crop ready to commence picking in September, 1950, of the net value of $18,000. This fruit had been produced by reason of the work, spraying and fertilizing which the son had furnished, except for a further application of approximately twenty tons of fertilizer to be applied during the summer months and which would cost approximately $1,350. All of this fruit was taken over by the father on April 21, 1950, and the son was not permitted to do anything further about it or participate in the net proceeds therefrom. It may be true that the father, after he took over, permitted a large part of the crop of limes to fall to the ground and spoil. This was not the fault of the son and he cannot be charged with what happened to the fruit after the father took over. When the father abolished the son's job, the grove was in excellent condition. It had been rehabilitated by the care, work and management of the son and by fertilizer and labor furnished by him and was in a condition to produce a maximum yield.
The father considered the oral agreement in regard to conveying a 40-acre tract to the son as being a separate contract and having nothing to do with the grove management contract. However, it is undisputed that when the son and his wife returned from Pennsylvania they took the invalid son to their home and the son's wife took care of the invalid son. The son and his wife moved onto the grove and the son's wife did all of the housekeeping, cooking, washing and caring for the invalid son. When the father and mother returned from their four-months trip, the son started to build the motor court on the land which had been pointed out to him by the father and which the father had agreed to convey to him. Upon the return from Pennsylvania, the father found that the son had cleared a space and was advised by the son that he was going to build the motor court. The father made no objections to the building of the motor court on the site selected. He lived within 70 feet from the spot where the motor court was being constructed and from time to time visited the building during the erection of same and on one occasion actually receipted for a delivery of cement on the job.
On the 15th day of June, 1950, the father and mother filed a bill for declaratory decree against their son and attached thereto the grove management contract. The bill alleged that the son had not made the payments of $250 per month called for by the contract; that he was in arrears in the sum of $9,305; that the son had constructed a permanent concrete block building of a permanent nature, unmovable, upon a portion of the grove. The father and mother alleged that they had complied with the terms of the contract in full but that the son had refused to pay to them the amount due under the contract and had refused to vacate the structure which he had erected upon the property. The bill prayed that the court would: (1) decree that the contract had been terminated by the son, (2) that the court enjoin the son from coming on the property or remaining on the property and issue a permanent injunction removing the son from the property, and (3) that the court adjudicate the amount due by the son under the contract and render a judgment in favor of father and mother against their son for the amount found to be due. There was no offer to do equity.
The management agreement attached to the bill of complaint stated that the owners 'are unable to care for said groves personally, and whereas, they hold great trust and faith...
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