Campbell v. Kauffman Milling Co.

• Decision Date: 18 December 1900
• Citation: 42 Fla. 328,29 So. 435
• Parties: CAMPBELL et al. v. KAUFFMAN MILLING CO.
• Court: Florida Supreme Court

29 So. 435

42 Fla. 328

CAMPBELL et al. v. KAUFFMAN MILLING CO.

Florida Supreme Court

December 18, 1900

Appeal from circuit court, Duval county; Rhydon M. Call, Judge.

Suit by the Kauffman Milling Company against A. B. Campbell and T. D Gibbens. Decree for plaintiff, and defendants appeal. Reversed.

Syllabus by the Court

SYLLABUS

The following rule governing quasi estoppels by the election of inconsistent positions or remedies approved: 'A party cannot, either in the course of litigation or in dealings in pais, occupy inconsistent positions. Upon that rule election is founded. A man shall not be allowed to approbate and reprobate. And, where a man has an election between several inconsistent courses of action, he will be confined to that which he first adopts. The election, if made with knowledge of the facts, is in itself binding. It cannot be withdrawn without due consent. It cannot be withdrawn though it has not been acted upon by another by any change of position.' Carter, J., dissenting.

COUNSEL

W. B. Owen and R. H. Liggett, for appellants.

A. W Cockrell & Son, for appellee.

OPINION

TAYLOR C.J.

The appellee, the Kauffman Milling Company, a corporation, filed its bill in equity in the circuit court of Duval county on the 2d day of December, 1893, against the appellants alleging in substance therein as follows: That on the 5th day of January, 1893, the said Gibbens was indebted to orator in the sum of $2,655.79, then past due and owing, and also had in his hands certain accounts for flour, the property of orator, theretofore sold by the said Gibbens as its agent and on its account. The items setting forth these flour accounts, and consisting wholly of sales so made by Gibbens of orator's flour on its account to divers persons named therein, and for the amounts severally specified therein, aggregating $1,808.26, are set forth in an exhibit to the bill, marked 'A.' That on the 5th day of January, 1893, the said Gibbens made an assignment of his property to Campbell in trust for the benefit of his creditors; the said Campbell paying no consideration therefor, other than was implied in his acceptance of the trust thereby created. The said Campbell accepted the said trust, and the said assignment was duly recorded. A copy of the assignment is attached as Exhibit B to the bill. This deed of assignment is in the usual form; conveys all of the property, real, personal, and mixed, of the said Gibbens, wheresoever the same may be, except such as is exempt from execution under the laws and constitution of Florida, in trust to be converted into money, and to collect the said rights in action and all sums of money due and owing to the said Gibbens; and the proceeds and avails thereof to be devoted, after payment of the costs and expenses of the execution of the trust, to the payment in full of all the debts of the said Gibbens, if the assigned assets shall be sufficient, but, if not, then the same to be paid pro rata to his creditors in proportion to the amounts of their respective claims, without preference; the residue of the assets, if any remaining after satisfying all debts in full, to be returned to the said Gibbens. The said deed of assignment contained also the following general proviso: 'Provided, that nothing herein contained shall be construed to be intended to deprive any person or persons having a valid subsisting lien, mortgage, or legal claim on any of the property hereby assigned, or any legal rights which they may have on that account.' That at the time of said assignment the said Gibbens had no interest whatever in the flour accounts set forth in Exhibit A, other than a commission of 10 cents per barrel for the flour so sold by him on orator's account, which interest accrued to him solely by virtue of his services in selling said flour for orator; and the said Gibbens had no interest in said flour before the sale thereof, as shown in said Exhibit A, nor in the said accounts, the proceeds of said sales, otherwise than in the commission of 10 cents per barrel so accruing to exhibit, either directly from the mills operated by your orator from which the said flour was produced, or had been shipped direct from said mills as the product thereof and the property of your orator, to Jacksonville, Florida, and thence to the said purchasers thereof, at the request of said Gibbens, who was acting in reference to such flour and such sales solely as the agent of your orator, so that the flour before the sale, and the proceeds thereof after the said sale, was and continued to be the property of your orator, subject only to the said claim of Gibbens for said commissions for his services in procuring the said sale thereof. That the said assignment purports on its face to assign all the property of every description belonging to the said Gibbens, and further provides that nothing therein shall be so construed as to deprive any one of any legal right then existing to the said property. That the said Campbell, as such assignee, took possession of all property embraced in said conveyance, and also took possession of said flour accounts, which were turned over to him by the said Gibbens with said assignment, and had, at the time of the demand hereinafter made upon him, collected a part of said flour accounts as such assignee, and since that demand has collected and converted into money the remainder of said accounts. That on the 23d day of February, 1893, your orator made demand upon said Campbell for said accounts, and the proceeds of such thereof as had been collected, but the said Campbell refused to turn over to your orator said accounts, or the proceeds thereof; and the said Campbell or the said Gibbens to this day has failed and refused to pay the proceeds of said accounts, or the amount thereof, or any part thereof, to your orator, and the said Campbell and the said Gibbens have severally failed and refused to pay, though often requested, said sum of $2,655.79, or any part thereof, so that the whole of said sum of $2,655.79, as well as the said proceeds of said flour accounts, are due and owing to your orator.' The said Exhibit A to the bill contains an itemized statement of said flour accounts so demanded of said Campbell. 'That on the 18th day of May, A. D. 1893, your orator obtained judgment in this court, on the law side thereof, against the said Gibbens, for the said sum of $2,655.79, and also for the sum of said flour accounts so turned over by him to said Campbell, together with the costs of court, and no part thereof, or the accounts upon which it was based, have been paid, and the said Gibbens has no property out of which an execution thereon can be made in whole or in part. That the said Campbell has made no accounting to or with any court whatever as to his said trust, nor did he file, as required by law, in the office of the clerk of the circuit court, a statement, duly verified, of all his doings and financial transactions as such assignee.' The said bill prays that 'the court of equity take jurisdiction of the administration of the trust created by said assignment, and adjudicate in favor of your orator the special equities herein set up as to said flour accounts, as well as its general equities as a creditor of said Gibbens; that the said Campbell be made to account to the said court as to the said trust estate so assigned to him; that said trust be closed; and that he be decreed to pay to your orator and the beneficiaries, severally, of said trust, the amount or amounts so ascertained to be due them severally.' There is also a prayer for general relief.

The defendant Campbell answered the bill separately, averring: That he was a stranger to all and singular the matters and things in the bill contained, except as in said answer stated, and therefore leaves the plaintiff to make such proof as he shall be able to produce. He admits the making of the assignment as alleged, and his acceptance of the trust thereby created. That among other accounts were a number of flour accounts upon which he has collected various sums, the total amount of which for flour is unknown to him, no separate account having been kept of the same; but the manner in which said accounts were acquired by the said Gibbens, or what were his relations with the plaintiff, the Kauffman Milling Company, he is ignorant of, and therefore can make no statement in regard thereto. That he admits that as such assignee he took possession of the property mentioned in said assignment, including flour accounts, and further admits that complainant made demand upon him as alleged in said bill, and that at the time of such demand this defendant had in his possession no money turned over to him by said Gibbens. That the amount collected since said assignment on flour accounts is as above set forth. He admits that he refused to pay over to said complainant the said flour accounts for the reason that he saw no evidence from the books of said Gibbens or elsewhere sufficient to satisfy him that Gibbens' relation to the said flour accounts was in any manner different from that of any of the other property turned over to him under said assignment, and nothing shown to prove that Gibbens was not the legal owner of said accounts up to the date of said assignment. He denies that he had made no accounting as required by law as to his said trust, but, on the contrary, alleges that he had filed in the office of the clerk of the circuit court of Duval county a verfied statement of all his doings and financial transactions as such assignee, as directed by the statute.

The defendant Gibbens also answered the bill separately. He admits that he was indebted to the complainant on the 5th of January, 1893, in the sum of $2,655.79. He admits the making of the...