Capital City Bank v. Hilson
| Citation | 60 So. 189,64 Fla. 206 |
| Parties | CAPITAL CITY BANK v. HILSON. |
| Decision Date | 20 November 1912 |
| Court | United States State Supreme Court of Florida |
Appeal from Circuit Court, Leon County; John W. Malone, Judge.
Bill in chancery by I. B. Hilson against the Capital City Bank. From a decree for complainant, defendant appeals. Affirmed.
See also, 59 Fla. 245, 51 So. 853.
Additional Syllabus by Editorial Staff
Syllabus by the Court
A party cannot, either in the courts of litigation or in dealing 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 It cannot be withdrawn without due consent. It cannot be withdrawn though it has not been acted upon by another by any change of position.
Whether coexistent remedies are inconsistent is to be determined by a consideration of the relation of the parties with reference to the right sought to be enforced as asserted in the pleadings.
If in fact or in law only one remedy exists, and a mistaken remedy is pursued, the proper remedy is not thereby waived. More than one remedy must actually exist. The doctrine of election of remedies does not apply to a case where a party in his first action mistook his remedy.
The reversal of a judgment in an action at law in favor of a plaintiff upon a written contract on the ground that the declaration failed to state a cause of action and that the plaintiff could not recover against the defendant upon the contract as written leaves the case as if there had been no judgment. Upon the going down of the mandate, the plaintiff is not precluded from filing his bill in equity for a reformation of such contract on the ground of mutual mistake. In such a case the doctrine of election of remedies does not apply.
A demurrer to the whole bill in equity operates as an admission that all such matters of fact as are well and sufficiently pleaded in the bill are true, though allegations of law are not admitted by the demurrer, for the law is to be ascertained by the court.
An appellate court will take judicial notice of its own opinions and also of its own records, so far as they appertain to the case before it for consideration, but will not take judicial notice in deciding one case of what may be contained in the record of another and distinct case, unless it be brought to the attention of the court by being made a part of the record of the case under consideration.
A written contract cannot be reformed in an action at law. A court of equity must be resorted to for that purpose.
Where by inadvertence or otherwise a written contract is drafted and executed contrary to the intention of the parties thereto, a court of equity may in a proper case, upon the ground of mutual mistake, reform the contract so as to make it express the real agreement and intention of the parties and as so reformed proceed to enforce such contract in order to do complete justice in the controversy. The right to the reformation of an instrument is not absolute, but depends upon an equitable showing.
COUNSEL John L. Neeley, of Tallahassee, for appellant.
W. A Blount, of Pensacola, and Fred T. Myers, of Tallahassee, for appellee.
On the 12th day of August, 1910, the appellee, as complainant, filed its bill in chancery against the appellant, as defendant, which bill, omitting the formal parts thereof, is as follows:
'The bill of complainant I. B. Hilson against the Capital City Bank alleges:
'(1) That the complainant is an adult and a citizen and a resident of the county of Santa Rosa, state of Florida.
'(2) That the defendant is a corporation chartered, organized, and doing business under the laws of the state of Florida, and having its principal place of business at Tallahassee, in the county of Leon, state of Florida.
'(3) That prior to the year 1905 the complainant was conducting the business of printing in the city of Tallahassee and in the city of Pensacola; said business embracing not only the operation of a general printing establishment but also the operation of two newspapers, one known as the Daily Capital, of Tallahassee, and the other, Daily News, of Pensacola.
'(4) That for the conduct of said business he contracted debts in his own name and on his own account as the purchase price of some portions of the plants belonging to the said businesses used in each of the said places, to wit, Tallahassee and Pensacola, and in the operation of the said plants. Among said debts were debts for the purchase price of four Mergenthaler linotype machines, two of which were bought for (and at the time of the agreement with defendant, hereinafter mentioned, were in use in) the business at Pensacola, and two were bought for (and at said time were in use in) the business at Tallahassee. That among debts contracted by him, as aforesaid, were debts to the defendant.
'(5) That in the early part of the year A. D. 1905 complainant and one Robert Gamble organized a corporation under the laws of the state of Florida, with a capital stock of $50,000, and under the name and style of the Capital Publishing Company, for the purpose of consolidating the said business at Tallahassee and the property used therein with a printing and newspaper business and the property used therein at Tallahassee, owned by the said Gamble, and known as 'the Tallahassean,' and upon the organization of the said corporation the complainant turned over to the said corporation the said business and property in Tallahassee and received in exchange therefor $40,000 par value of the stock of the said corporation, and the said Gamble turned over to the said corporation his said business and property, and received in exchange therefor $8,500 par value of the stock of the said corporation; $1,500 of the par value of the said stock being retained in the treasury of the said corporation. In the negotiations for the incorporation of the said company, it was agreed with the said Gamble that the complainant should pay the debts theretofore contracted by him in the purchase of the plant contributed as aforesaid by him to the said corporation, and in the operation thereof, using therefor the salary and dividends coming to him from the said corporation.
'(6) That the complainant continued his connection with such corporation as stockholder therein and president thereof until the 29th day of May, 1906 during which time he contracted debts in his own name and on his own account, and for which the said corporation was not liable except to him, although it received the benefit of the sums received or property purchased by the incurring of the said debts, and he also incurred some debts in the name of and for the benefit of the said corporation, for which it was liable.
'(7) That, as aforesaid, among the debts incurred by him on his own account were large debts due to the defendant, which he was unable to pay, and which the defendant was desirous of having paid, and about the 29th day of May, 1906, the defendant, through its president, George W. Saxon, opened negotiations with the complainant for the transfer to the defendant of the stock held by complainant aforesaid, and as the result of the said negotiations it was agreed between the complainant and the defendant that the defendant should pay to the complainant the sum of $40,000, the par value of the stock held by him in the said Capital Publishing Company, the said payment to be made by canceling the said indebtedness contracted by the complainant to it, the defendant, and by the assumption and subsequent payment by the defendant of certain specified obligations of the complainant, and of certain specified obligations of the Capital Publishing Company.
'(8) That in the said negotiations, and as the basis for the contract of sale of the said stock by complainant to defendant, and the assumption and payment by the defendant as aforesaid, the defendant required the complainant to make and deliver to him a statement of all the obligations, whether of the Capital Publishing Company, or of the complainant, or of the Capital Publishing Company and the complainant jointly, which were to be assumed by the defendant, and the complainant did so make and deliver to the defendant a statement of the said obligations, which were as follows:
Towers Mfg. Co., about .. $ 87 00
S. P. Richards ............. 125 00
H. & W. B. Drew Co.......... 100 00
Morning News ................ 70 00
Schoemaker & Co............. 125 00
Cutter Rice & Co............ 425 00
Mergenthaler Co........... 6,500 00
McDougall .................. 350 00
Whitlock Printing Co........ 675 00
Antietam Paper Co......... 1,500 00
Electric Co................. 176 00
'--explaining to the defendant that the amounts set forth in the statement were approximate, but substantially correct.
'(9) That, in order that the understanding of the defendant should be evidenced in writing, the complainant demanded such writing and the defendant undertook the writing of same, and its president, George W. Saxon, personally wrote and presented to the complainant an understanding in words and figures following, to wit:
Capital City Bank.
(State Depository.)
G. W. Saxon, President.
J. A. Ball, Vice President.
Branch at Apalachicola, Fla.
T. S. Perkins, Cashier.
John M. Bell, Asst. Cashier.
Tallahassee, Fla. May 29th, 1906.
We hereby indemnify and release Mr. I. B. Hilson from the following obligations of the Capital Publishing Co.:
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