Florida Citrus Exchange v. Grisham

• Decision Date: 28 January 1913
• Citation: 65 Fla. 46,61 So. 123
• Parties: FLORIDA CITRUS EXCHANGE v. GRISHAM.
• Court: Florida Supreme Court

61 So. 123

65 Fla. 46

FLORIDA CITRUS EXCHANGE v. GRISHAM.

Florida Supreme Court

January 28, 1913

Error to Circuit Court, Hillsboro County; F. M. Robles, Judge.

Action by the Florida Citrus Exchange against J. K. Grisham.Judgment for defendant, and plaintiff brings error.Affirmed.

Syllabus by the Court

SYLLABUS

Under the Constitution of Florida the wife, at her pleasure, may terminate the control over her separate property conferred by statute upon the husband.

A husband is not liable upon a contract to sell citrus fruit controlled by him, if the first is grown upon the separate property of his wife, who asserts her control thereover.

The statute conferring upon the husband the care and management of the wife's separate property is of force only while such arrangement is mutually agreeable.

COUNSELWm. Hunter and C. B. Parkhill, both of Tampa, for plaintiff in error.

James F. Glen and C. C. Whitaker, both of Tampa, for defendant in error.

OPINION

COCKRELL J.

This is an action for alleged breach of contract to sell, through the Citrus Exchange, for a period of five years all the citrus fruit that might be grown, owned, or controlled by J. K Grisham.A plea was filed admitting the execution of the contract, but averring that Grisham owned no citrus fruit, but that his wife owned a grove, and that he entered into the contract intending to procure his wife to ship the fruit grown thereon through the said Exchange; but, the venture proving unprofitable, she was unwilling, and declined and refused to permit any more to be so sold.A demurrer to this plea was overruled, and final judgment rendered for the defendant.

It is of course, not claimed that the husband owned the fruit grown upon the wife's land, but the question presented is: Does the husband 'control' the marketing of that fruit, within the meaning of the contract, so as to be liable for his failure to ship it through the Exchange?We must read the contract as covering only such fruit as might, from time to time, during the five-year period, be controlled by Grisham, and not to cover the oranges from a grove owned or controlled by him at the date of the contract, after it had been sold by him, or over which he had lost control.

If, for example, he had, to the full knowledge of the Exchange, a control over a grove under a contract terminable at the will of the owner, he would not be held in damages for future crops, if the owner should exercise the option and place another in control.

The question recurs then: Is the contract by the husband over the wife's property absolute, or may it be terminated by the wife?

Under the act of March 6, 1845, brought forward in the General Statutes as section 2589, 'the property of the wife shall remain in care and management of the husband, but he shall not charge for his care and management, nor shall the wife be entitled to sue her husband for the rent, hire, issues, proceeds or profits of her said property.'The contention of the plaintiff in error might be sound, were it not for the provision of the Constitution of 1885, art. 11, § 1, declaring that 'all property, real and personal, of a wife owned by her before marriage, or lawfully acquired afterwards by gift, devise, bequest, descent, or purchase, shall be her separate property, and the same shall not be liable for the debts of her husband without her consent given by some instrument in writing, executed according to the law respecting conveyances by married women.'

The Constitution has thus vested her with the property in her separate estate, instead of the mere title thereto, which only she enjoyed prior to the Constitution of 1868, of which our...