Cook v. Central and Southern Fla. Flood Control Dist., No. 1129

CourtCourt of Appeal of Florida (US)
Writing for the CourtKANNER; SHANNON, J., and STEPHENSON, GUNTER
Citation114 So.2d 691
PartiesEmerson C. COOK, Incompetent, and Shirlee E. Cook, as Curator of the Estate of Emerson C. Cook, Incompetent, Appellants, v. CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL DISTRICT, a public corporation, Appellee.
Decision Date30 September 1959
Docket NumberNo. 1129

Page 691

114 So.2d 691
Emerson C. COOK, Incompetent, and Shirlee E. Cook, as Curator of the Estate of Emerson C. Cook, Incompetent, Appellants,
v.
CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL DISTRICT, a public corporation, Appellee.
No. 1129.
District Court of Appeal of Florida, Second District.
Sept. 30, 1959.

Page 692

Fulton, Sullivan & Burns, West Palm Beach, for appellants.

Robert D. Tylander and Robert Grafton, West Palm Beach, for appellee.

KANNER, Acting Chief Judge.

The grounds of a motion to dismiss the amended complaint were that the complaint failed to state a cause of action, that it failed to state a basis for equitable relief, and that it sought money damages for breach of a written contract. The motion was denied and this interlocutory appeal has ensued.

Allegations of the amended complaint show in substance that the Emerson Cook Company was by sealed contract of December 12, 1949, employed as financial agent

Page 693

for the Everglades Drainage District. As regarded the company's purchase and sale of government bonds for the district, the contract specified a guarantee against loss to the district on all such bonds then belonging to or later acquired by it and guaranteed that the district would receive full interest on such bonds less one-fourth point annual amortization. A copy of the agreement was attached to the complaint as exhibit A.

The Emerson Cook Company was liquidated in December, 1950; and all assets in an unknown amount were distributed to Emerson C. Cook, as sole stockholder, without provision for satisfying liabilities of the company. On January 24, 1951, Emerson C. Cook by letter, exhibit B to the complaint, resigned as an individual, proposing that the contract be terminated except that it remain in force only as to and until determination of the ultimate and respective liabilities of the parties. The resignation as conditioned was approved.

Under procedure provided for dissolution of the Everglades Drainage District by the 1949 legislature, sale of U. S. treasury bonds held by it was required. Emerson C. Cook, having been notified in January, 1954, of the contemplated sale of the bonds, by letter consented as an individual to their sale. This was done at a net loss of $30,976.86. Exhibit C of the complaint showed the computation of this net loss. Also pursuant to the 1949 legislative act, all the remaining assets of the Everglades Drainage District were transferred to Central and Southern Florida Flood Control District on April 16, 1956, including the claimed indebtedness of Emerson C. Cook, as an individual, nothing having been paid by him on the loss incurred by the sale of the bonds.

The foregoing factual situation was in essence alleged in the complaint. It was also alleged that Cook had thereby become...

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10 practice notes
  • Stern v. First Nat. Bank of South Miami, No. 72--832
    • United States
    • Court of Appeal of Florida (US)
    • March 20, 1973
    ...148 So.2d 561; Banzhaf v. Parrish, Fla.App.1959, 109 So.2d 892; Cook v. Central & Southern Florida Flood Control District, Fla.App.1959, 114 So.2d 691; Akin v. City of Miami, Fla.1953, 65 So.2d 54. Neither was it envisioned that the rule would allow a motion to dismiss to supplement a compl......
  • Beck v. Barnett Nat. Bank of Jacksonville, No. B-179
    • United States
    • Florida District Court of Appeals
    • January 7, 1960
    ...64 So.2d 646. 16 Atkins v. Humes, Fla.App.1958, 107 So.2d 253. 17 Cook v. Central and Southern Flood Control District, Fla.App., 114 So.2d 691. ...
  • George G. Sharp, Inc. v. Doric Marine, Inc., No. 88-1934
    • United States
    • Court of Appeal of Florida (US)
    • April 4, 1989
    ...affirmative Page 229 defense. See 35 Fla.Jur.2d Limitations and Laches § 93 (1982) (citing Cook v. Central & S. Fla. Flood Control Dist., 114 So.2d 691 (Fla. 2d DCA 1959)) (laches must be plead affirmatively). See also, Note, The Doctrine of Laches in Florida: A Statutory Hybrid, 13 Stetson......
  • Brandon v. Pinellas County, No. 2519
    • United States
    • Court of Appeal of Florida (US)
    • May 18, 1962
    ...or conclusions unsupported by specific facts will not suffice. Cook v. Central and Southern Florida Flood Control District, Fla.App.1959, 114 So.2d 691. The conclusion of the pleader as to the meaning of the contracts attached to the complaint as an exhibit is not binding on the court. 41 A......
  • Request a trial to view additional results
10 cases
  • Stern v. First Nat. Bank of South Miami, No. 72--832
    • United States
    • Court of Appeal of Florida (US)
    • March 20, 1973
    ...148 So.2d 561; Banzhaf v. Parrish, Fla.App.1959, 109 So.2d 892; Cook v. Central & Southern Florida Flood Control District, Fla.App.1959, 114 So.2d 691; Akin v. City of Miami, Fla.1953, 65 So.2d 54. Neither was it envisioned that the rule would allow a motion to dismiss to supplement a compl......
  • Beck v. Barnett Nat. Bank of Jacksonville, No. B-179
    • United States
    • Florida District Court of Appeals
    • January 7, 1960
    ...64 So.2d 646. 16 Atkins v. Humes, Fla.App.1958, 107 So.2d 253. 17 Cook v. Central and Southern Flood Control District, Fla.App., 114 So.2d 691. ...
  • George G. Sharp, Inc. v. Doric Marine, Inc., No. 88-1934
    • United States
    • Court of Appeal of Florida (US)
    • April 4, 1989
    ...affirmative Page 229 defense. See 35 Fla.Jur.2d Limitations and Laches § 93 (1982) (citing Cook v. Central & S. Fla. Flood Control Dist., 114 So.2d 691 (Fla. 2d DCA 1959)) (laches must be plead affirmatively). See also, Note, The Doctrine of Laches in Florida: A Statutory Hybrid, 13 Stetson......
  • Brandon v. Pinellas County, No. 2519
    • United States
    • Court of Appeal of Florida (US)
    • May 18, 1962
    ...or conclusions unsupported by specific facts will not suffice. Cook v. Central and Southern Florida Flood Control District, Fla.App.1959, 114 So.2d 691. The conclusion of the pleader as to the meaning of the contracts attached to the complaint as an exhibit is not binding on the court. 41 A......
  • Request a trial to view additional results

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