Gray v. Standard Dredging Co.

• Decision Date: 14 March 1933
• Citation: 111 Fla. 149,149 So. 733
• Parties: GRAY v. STANDARD DREDGING CO. et al.
• Court: Florida Supreme Court

149 So. 733

111 Fla. 149

GRAY v. STANDARD DREDGING CO. et al.

Florida Supreme Court, Division B.

March 14, 1933

Rehearing Denied June 21, 1933.

Extraordinary Petition for Rehearing Denied Aug. 1, 1933.

Suit by Frances B. Gray against the Standard Dredging Company and others. From an order dismissing the bill of complaint as to defendant Reliable Dredging Company and from an order dismissing the amended bill of complaint as to all defendants, complainant appeals.

Affirmed.

On Petition for Rehearing.

On Extraordinary Petition for Rehearing. Appeal from Circuit Court, Duval County; Daniel A. Simmons, judge.

COUNSEL

Smith &amp Cavanagh, of Jacksonville, for appellant.

W. T Stockton, Stockton, Ulmer & Murchison, Joseph Hartman Fleming, Hamilton, Diver & Lichliter, W. L. Jones, and J. Turner Butler, all of Jacksonville, for appellees.

OPINION

BUFORD, Justice.

The appeal in this case is from an order dismissing the bill of complaint as to the defendant Reliable Dredging Company and also from an order dismissing the amended bill of complaint as to all defendants. The salient facts as shown by the bill of complaint are:

That Standard Dredging Company was indebted to the plaintiff; that one George V. Greene was president of said company; that, after the maturity of the obligation of Standard Dredging Company to the complainant, Greene withdrew from the checking account of Standard Dredging Company $2,500 in payment of salary due to Greene by Standard Dredging Company and thereafter used the same $2,500 as part payment in the purchase of a dredge for Reliable Dredging Company, a corporation, the title to which was taken in the name of the corporation, and that Greene was then the president of that corporation; that thereafter Reliable Dredging Company agreed to sell to the defendant Duval Engineering & Construction Company and that company agreed to purchase the same dredge, and the latter named company deposited $5,000 with Barnett National Bank to be delivered to Reliable Dredging Company as part payment of the dredge on the happening of certain unknown contingencies.

The bill alleges that the complainant has recovered a judgment against the defendant Standard Dredging Company in the sum of $14,505.11, together with $7.50 costs. The bill seeks a decree holding that there exists in favor of Standard Dredging Company and all of its creditors an equitable trust or line upon the 'Dredge Reliable,' 'and/or its proceeds to the extent of $2500.00 and/or to the extent of the increase and profits thereof,' and that the trust be enforced in favor of the complainant.

The bill also contains alternative prayers of relief which we feel it is not necessary for us to discuss.

Greene was not made a party by the original bill of complaint, and, while he was made a party to the amended bill of complaint, we are unable to discern why he was so included, because the last paragraph of the amended bill of complaint is as follows:

'And as to the defendant George V. Greene who has not heretofore been a party to this suit, your oratrix specifies that she seeks no direct relief, and that she does not require him to appear or to answer hereto.'

There is but one theory upon which the complainant could hope to recover, in this suit and that is upon the theory that the socalled trust fund doctrine applies in Florida, and this court has repeatedly held that it does not. See Wheeler v. Matthews, 70 Fla. 317, 70 So. 416; Guaranty Trust & Savings Bank v. U.S. Trust Co., 89 Fla. 324, 103 So. 620.

Inasmuch as the complainant has not seen fit to pray any relief against the defendant Greene, we are not called upon to determine whether or not the complainant is entitled to have an accounting against Greene because of an alleged violation of section 43 of chapter 10096, Acts of 1925, now section 6569, C. G. L., and therefore we express no opinion in that regard.

The allegations of the bill presented no ground for equitable relief in behalf of the complainant against any other of the named defendants. Therefore the orders appealed from should be affirmed, and it is so ordered.

Affirmed.

DAVIS, C.J., and WHITFIELD, TERRELL, and BROWN, JJ., concur.

On Petition for Rehearing.

PER CURIAM.

This case is before us new on petition for rehearing on the opinion and judgment filed herein on March 14, 1933. In that opinion we said:

'There is but one theory upon which the complainant could hope to recover, in this suit and that is upon the theory that the so-called trust fund doctrine applies in Florida, and this court has repeatedly held that it does not. See Wheeler v. Mathews, 70 Fla. 317, 70 So. 416; Guaranty Trust & Savings Bank v. U.S. Trust Co., 89 Fla. 324, 103 So. 620.'

It is contended by the petitioner that section 43 of chapter 10096, Acts of 1925, being section 6569, C. G. L. 1927, became the law of this state subsequent to the opinions cited above, that this provision of our statute was adopted from a like statute obtaining in the state of New York, and that the decisions of the courts of final appellate jurisdiction in the state of New York construing the effect of that statute in New York are binding upon the Florida courts and were adopted with the passage of the act as the proper constructions of such statute upon its becoming a law in this state. This theory is correct. Duval v. Hunt, 34 Fla. 85, 15 So. 876. It therefore follows that the trust fund doctrine as enunciated in New York in the cases of Cole v. Milerton Iron Co., 133 N.Y. 164, 30 N.E. 847, 28 Am. St. Rep. 615, and Caesar v. Bernard, 156 A.D. 724, 141 N.Y.S. 659, and Id., 209 N.Y. 570, 103 N.E. 1122, obtains in Florida in so far as corporations organized under chapter 10096 of the Acts of 1925 are concerned. See sections 1 and 43 of chapter 10096, being sections 6527 and 6569, C. G. L. The corporation here involved was incorporated under that act.

While the complainant in the court below attempted to invoke the provisions of this statute, the allegations of the bill of complaint and of the amended bill of complaint are not sufficient to entitle her to the relief prayed, because of certain matters which were referred to in the original opinion, to wit: In the original bill of complaint she failed to make Greene a party, while in the amended bill of complaint she named Greene...