Durham Tropical Land Corp. v. Sun Garden Sales Co.
| Decision Date | 09 August 1932 |
| Citation | 106 Fla. 429,151 So. 327 |
| Parties | DURHAM TROPICAL LAND CORPORATION v. SUN GARDEN SALES CO. et al. |
| Court | Florida Supreme Court |
Commissioners' Decision.
On rehearing.
Former opinion adhered to, and judgment heretofore entered and decree of circuit court affirmed.
For former opinion, see 138 So. 21.
TERRELL and DAVIS, JJ., dissenting. Appeal from Circuit Court, Pinellas County; John U. Bird, judge.
Whitaker Himes & Whitaker, of Tampa, for appellant.
Mabry Reaves & Carlton, of Tampa, for appellees.
ANDREWS Commissioner.
The petition filed by the appellees upon which a rehearing was granted states that the opinion heretofore rendered (1) misconstrues the contract involved in the suit, and (2) overlooked the right of equitable set-off set up by the amended answer.
It must be conceded that the contract between the complainant as agent and the defendant as owner of the lands in question is very complicated and its apparently conflicting terms most difficult to reconcile. It is not the province of this court however, to undertake to divine what was 'in the mind' of either of the contracting parties. The intent and purpose must be gathered from the wording of the whole contract and reasonable constructions to be placed upon all its provisions. See Marion Mortgage Co. v. Howard, 100 Fla. 1418, 131 So. 529, and number of cases there cited.
The main ground asserted by the appellant for requesting a rehearing in this cause is that the court in its former opinion overlooked the rule giving a defendant the right of equitable set-off in cases of insolvency of complainant.
With reference to this point, it seems clear that the answer stricken by the trial court was not pleaded by the defendant upon the theory of 'equitable set-off,' and it does not conform to such pleas. The general rule is that in order for such a set-off to be available in an equity suit it must show an existing debt or demand against complainant in favor of defendant and that it arose and existed under such circumstances and it is of such a nature that it would be inequitable to disallow it. 24 R. C. L. 865, § 70; 57 C.J 446,§ 96; 57 C.J. 463, § 117. The above prerequisites are not supported by the averments in the answer in the instant case.
As to the 'second' counterclaim or set-off, it does not appear that the defendant acquired the claims of the subagents upon which the alleged equitable set-off was based without knowledge of such insolvency, but rather to the contrary. In fact, it is shown that the claims of the subagents against complainants set forth in the proposed amended answer were acquired, if at all,after defendant had refused to make further payments to complainants, and to that extent the defendant made it more difficult for the complainant to pay any claims that might be due from them to the subagents.
We think it is quite clear that under the circumstances of this case that the demands of these third persons (subagents), who are not parties to this suit, are not available as a set-off or counterclaim in favor of the defendant, and therefore the filing of the proposed amended answer was properly refused by the trial court. The general rule is that no counterclaim will be allowed to the defendant which requires the bringing in of third parties who may have independent claims against the complainant. See North Chicago Rolling-Mill Co. v. St. Louis Ore & Steel Co., 152 U.S. 596, 14 S.Ct. 710, 38 L.Ed. 565; 24 R. C. L. 860, § 64; also, 57 C.J. 447, 448, and many other decisions there cited.
The petition for rehearing further states that it is uncertain from the court's opinion as to what amount defendant is entitled to retain as the net price to it from the sales of lands effected by complainant.
The answer shows that defendant mainly relied as a defense upon that part of paragraph 25 of the contract which stipulated that if during any three consecutive months after August 1 1925, the combined sales of complainants fail to aggregate three thousand acres that 'all rights...
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