Brite v. Orange Belt Securities Co.

• Decision Date: 08 June 1938
• Citation: 133 Fla. 266,182 So. 892
• Parties: BRITE et al. v. ORANGE BELT SECURITIES CO.
• Court: Florida Supreme Court

182 So. 892

133 Fla. 266

BRITE et al. v. ORANGE BELT SECURITIES CO.

Florida Supreme Court

June 8, 1938

Rehearing Denied July 25, 1938.

Suits by the Orange Belt Securities Company, a Florida corporation against Aimee K. Brite and husband, to charge two tracts of land, the separate property of named defendant, with the cost of care, cultivation and fertilization of orange groves growing upon such land, wherein a counterclaim was filed.From a decree for plaintiff, defendants appeal.

Remanded with directions.Appeal from Circuit Court, Lake County; J. C B. Koonce, judge.

COUNSEL

H. C. Collins, of Leesburg, for appellants.

Duncan, Hamlin & Duncan, of Tavares, and John S. Lavin, of Orlando, for appellee.

OPINION

PER CURIAM.

The Orange Belt Securities Company, plaintiff below, filed two bills of complaint for the purpose of charging in equity two tracts of land, the separate property of Mrs. Aimee K. Brite a married woman, the claim being based upon separate written agreements made between her and the Securities Company for the care, cultivation, and fertilization of orange groves growing upon said lands.The bills are identical except those parts describing the date of the agreement, the land sought to be charged, and the itemized statement setting out the amounts claimed.Upon motion of the defendants, these causes were ordered consolidated and afterwards proceeded as one action.

The first bill alleges that on January 4, 1927, a contract bearing the following provision was entered into between the parties:

'The said second party(Aimee K. Brite) shall pay on demand cost of spraying, spraying material and fertilizer when and as applied, which material shall be ordered by the said first party for the said second party and shall apply same in a proper manner when and as needed.'

It is further alleged that all amounts due under the contract up to and including Nov. 30, 1930, had been paid but since that date the said defendant had become indebted $1,913.93, which sum was past due and unpaid.

The second bill alleges that an identical contract was entered into by the same parties on February 24, 1928, for the cultivation and care of citrus groves on another piece of land owned by Mrs. Brite and that up to Oct. 31, 1929, the defendant paid in full all monies due under the contract but that since that date she had failed and refused to make any of the payments due under the agreement and that the last statement rendered before the filing of this bill showed an amount of $1,718.26 due.

It appears from the itemized statements attached to each of the bills that various items of interest, aggregating $141.94 under the first contract and $170.16 under the second contract, were claimed.The agreements are silent as to the payment of interest on delinquent payments.

Defendants filed a motion to dismissthe bill for want of equity and upon the further grounds that the bill sought to charge the separate property of the defendant, a married woman, with interest without showing an equitable basis for such charge.Defendants also filed a motion to strike the items of interest upon the principal ground that the bill failed to set forth any matter in law or equity sufficient to charge defendants with the payment of interest.Both motions were overruled.

Defendants then filed their answer denying the accuracy of the itemized accounts, asserting that they did not represent the true cost of the fertilizer and spraying materials use; and by way of affirmative relief asked for an accounting for the years 1927, 1928, 1929 and 1930.

An examiner was appointed and testimony taken.Defendants then filed a motion for the entry of an order requiring plaintiff to render and submit to the Court an accounting for the above mentioned years.

Defendants filed an amended answer on June 7, 1935.Paragraphs 7, 8 & 9 were struck on motion of the plaintiff.These paragraphs set up a detailed account of the financial transactions between the parties under the contract prior to December 31st, 1932 and alleged that the charges did not represent the cost to the plaintiff of the fertilizer, spraying and spraying material but contained costs of hauling these materials, maintenance of trucks, wages of men engaged in loading and unloading, etc., and that the plaintiff had falsely and fraudulently represented the charges to be according to the contract, and that payments were made upon reliance that these representations were true and asking for an accounting.

Upon motion the counter-claim contained in the defendants' amended answer was dismissed.It was stipulated by the parties that ten per cent would be a reasonable attorney's fee, if plaintiff was entitled to recover attorney's fees.

At the final hearing the Court found that the plaintiff was not entitled to any charge for pruning the trees as that charge was covered by the flat contractual charge for cultivation contained in each contract; and that the plaintiff, Orange Belt Securities Company, has established a prima facie case in support of the charges made and claimed in its respective bills of complaint for the costs of various items of labor performed and material furnished upon the respective groves in question as and when performed or applied; that defendants had successfully rebutted this prima facie case as to the cost of the materials reflected by invoices; the plaintiff having failed to satisfactorily show to the Court the difference between the prime or invoice cost of the material and the cost of the same when and as applied; that in accordance with these findings the separate property of Aimee K. Brite, described in the first contract, is charged in equity for the sum of $2,061.18, which sum includes interest on the delinquent accounts and this property is further charged $206.12 as attorney's fees; that the separate property of Aimee K. Brite, described in the second contract, is charged in equity for the sum of $2,086.96, which sum includes interest and this property was further charged for $208.70 as attorney's fees.It was ordered that the aforesaid amounts be paid, with one-half of the costs of this suit, within three (3) days and in default of payment the premises described shall be charged in equity and sold at public outcry.

The second and third assignments of error are that the Court erred in denying the motion of the defendants for an accounting and entering its order striking certain paragraphs of the amended answer and dismissing the counterclaim contained therein.

The defendants sought to require the plaintiff to render an accounting of the transactions occurring under the contract prior to the time when the first moneys for which the plaintiff brings suit fell due under the respective contracts.These transactions consisted of settled accounts between the parties.The original answer alleged that the defendant was ignorant of the charges made against her for the maintenance of each of the groves for the year stated and the proper amount that should be credited to her account from the sales of the fruit grown upon the lands.Neither fraud nor mistake was alleged, and the allegations of the original answer were clearly insufficient to justify opening up these settled accounts.

The defendants' amended answer was filed on the 6th of June, 1935, and paragraphs 7, 8, & 9 sought to impeach these settled accounts.This effort to open up these settled accounts occurred four years and six months after settlement in one case and five years and seven months had elapsed since settlement in the other case.

We are of the opinion that a sufficient showing of fraud is not made out by the facts alleged in these stricken paragraphs and that the Chancellor was justified in refusing to open these accounts after the defendants had acquiesced for such a long period of time.Apparently the main objection to the accounts was the fact that defendant was not charged the invoice 'cost' of the goods but that costs of freight, costs of trucking, wages of the men who handled the fertilizer at the warehouse and wages of the men who loaded it on the truck, etc., were all considered in arriving at the cost of the fertilizer and other materials, 'when and as applied'.The Chancellor rightly sustained this interpretation of the contract in his final decree but did not allow these items on the accounts sued for because the plaintiff'failed to satisfactorily show to the Court the difference between the prime or invoice cost of such material and the cost of the same when and as applied.'It does not appear that there was any 'fraud' but only that the plaintiff did not completely meet his burden of proving the amounts claimed.

Settled accounts can be reopened only on a strong showing of fraud or mistake, we are of the opinion that such a showing was not made and that the Court did not err, especially in view of the fact that the defendant delayed so long in seeking this relief.As was said by in seeking this relief.As was said by Chief Justice Marshall in his opinion rendered in the case of Chappedelaine & Closrivierre v. Dechenaux, 4 Cranch 306, 309, 2 L.Ed. 629, 'No practice could be more dangerous than that of opening accounts which the parties themselves have adjusted, on suggestion supported by doubtful or by only probable testimony.'

The second question raised on this appeal is predicated on that part of the Chancellor's decree charging the defendant married woman's separate property with attorney fees.

Under Article 11, Section 2, of the Constitution of Florida, a married woman's separate property can be charged in equity only in the following instances:

'A married woman's...