Gregg Corporation v. Burdine

• Decision Date: 14 May 1930
• Citation: 129 So. 868,100 Fla. 1751
• Parties: GREGG CORPORATION v. BURDINE et al.
• Court: Florida Supreme Court

129 So. 868

100 Fla. 1751

GREGG CORPORATION v. BURDINE et al.

Florida Supreme Court

May 14, 1930

Rehearing Denied Sept. 4, 1930.

En Banc.

Error to Circuit Court, Dade County; W. L. Freeland, Judge.

Action by the Gregg Corporation against R. B. Burdine and another . There was a judgment sustaining a demurrer to the declaration, and plaintiff brings error.

Affirmed by operation of law.

Syllabus by the Court.

SYLLABUS

In this cause Mr. Justice ELLIS, Mr. Justice BROWN, and Mr. Justice BUFORD are of the opinion that the order of the circuit court sustaining the demurrer should be affirmed, while Mr. Chief Justice TERRELL and Mr. Justice WHITFIELD and Mr. Justice STRUM are of the opinion that the said order should be reversed. When it appears that the members of the court are permanently and equally divided in opinion as to whether a judgment should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the court, the judgment should be affirmed. Therefore, it is considered, ordered, and adjudged that the judgment of the circuit court in this cause be and the same is hereby affirmed on the authority of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51.

COUNSEL

Crawford & May, of Jacksonville, for plaintiff in error.

Burdine Terry & Fleming and L. L. Robinson, all of Miami, for defendants in error.

OPINION

PER CURIAM.

The amended declaration herein does not wholly fail to state a cause of action; therefore the demurrer thereto should have been overruled. Wertz v. Tampa Electric Co., 78 Fla. 405, 83 So. 270; Peterson v. Oscar Daniels Co., 83 Fla. 29, 90 So. 621; Pero v. Corley, 87 Fla. 448, 100 So. 748; Foster v. St. Johns Electric Co., 86 Fla. 338, 98 So. 75; McDonald v. Exchange Supply Co., 88 Fla. 80, 101 So. 28; Cummings Mach. Works v. Clark, 89 Fla. 383, 105 So. 100; Hawkins v. Shore Acres Properties, 93 Fla. 670, 112 So. 61; Yon v. Pinellas County Power Co., 93 Fla. 503, 112 So. 50; Carlton v. F. E. C. Ry. Co., 95 Fla. 596, 116 So. 870.

The judgment rendered on the demurrer should be reversed.

TERRELL, C.J., and WHITFIELD and STRUM, JJ., concur.

ELLIS BROWN, and BUFORD, JJ., dissent.

DISSENTING

ELLIS, J. (dissenting).

I am unable to agree to the conclusion reached by the other members of the court in this case that the declaration 'does not wholly fail to state a cause of action' and that 'therefore the demurrer thereto should have been overruled.'

A writ of error was taken by the plaintiff, the Gregg Corporation, to a judgment on demurrer to the declaration. It was the fourth declaration filed in the cause for damages for an alleged breach of a contract which had been entered into between the Gregg Corporation as purchaser and Burdine and Cleary as sellers of a 99-year lease held by the latter on certain described real estate in Miami.

A copy of the contract of purchase and a purported copy of the lease were attached to the declaration and by apt words made a part of it. Therefore upon demurrer the sufficiency of the declaration is tested by reference to it and the copies of the instruments attached and made a part of it, because the instruments attached become a part of the declaration and all taken together constitute the statement in writing of the cause of action or declaration. See State v. Seaboard Air Line Ry. Co., 56 Fla. 670, 47 So. 986; Sovereign Camp of W. O. W. v. Hodges, 72 Fla. 467, 73 So. 347.

The rule may be considered as established in this jurisdiction that where the allegations of a declaration containing one count only are repugnant to and inconsistent with each other, such allegations neutralize each other and the declaration will be held bad on demurrer. See State v. Seaboard Air Line Ry. Co., supra; Am. Fire. Ins. Co. v. King Lumber Co., 74 Fla. 130, 77 So. 168.

It has also been repeatedly held that every pleading is to be most strictly construed against the pleader thereof; that it is the first essential of good pleading that it be characterized by certainty. See Murrell v. Peterson, 57 Fla. 480, 49 So. 31; Hillsborough Grocery Co. v. Leman & Wright, 62 Fla. 208, 56 So. 684; Seaboard Air Line v. Rentz & Little, 60 Fla. 429, 54 So. 13; Sylvester v. Lichtenstein, 61 Fla. 441, 55 So. 282; F. E. C. Ry. Co. v. Peters, 72 Fla. 311, 73 So. 151, Ann. Cas. 1918D, 121; Co-operative Sanitary Baking Co. v. Shields, 71 Fla. 110, 70 So. 934.

It is the function of a court of equity or a court exercising such powers to enforce the rescission of contracts and the surrender and cancellation of written instruments and to grant the appropriate relief. That proposition is well settled in the jurisprudence of the United States. 'It is in fact an ancient head of equity jurisdiction founded on the administration of a protective or preventive justice.' See 9 C.J. 1160; McCracken v. McBee, 96 Ark. 251, 131 S.W. 450; Hamilton v. Cummings, 1 Johns. Ch. (N. Y.) 517.

In the case at bar the plaintiff corporation did not seek its remedy in a court of equity, but preferred to take its case into a court of law to seek damages for an alleged breach of the contract. To sustain such an action it was necessary to allege clearly, with such degree of certainty that the defendant might be informed of the grounds of complaint, just what duty under the terms of the agreement the defendant was obligated by the instrument to discharge and which he failed to perform. It should also show the plaintiff's right to the performance of such duty by the defendant, or, as has been stated in other words, the performance by the plaintiff of all conditions precedent to a right of action upon the contract.

The cases cited in the majority opinion are to the proposition that where the declaration does not wholly fail to state a cause of action a demurrer thereto should not be sustained.

In view of the long line of decisions by this court holding that all pleadings should be certain, that the allegations or averments of the pleader must be taken most strongly against him, and that inconsistent or repugnant allegations in a declaration render it bad, the rule expressed in the...