Griffin v. Societe Anonyme La Floridienne J. Buttgenbach & Co.

• Decision Date: 10 June 1907
• Citation: 53 Fla. 801,44 So. 342
• Parties: GRIFFIN et al. v. SOCI'T' ANONYME LA FLORIDIENNE J. BUTTGENBACH & CO. et al.
• Court: Florida Supreme Court

44 So. 342

53 Fla. 801

GRIFFIN et al. v. SOCI'T' ANONYME LA FLORIDIENNE J. BUTTGENBACH & CO. et al.

Florida Supreme Court, Division B.

June 10, 1907

Appeal from Circuit Court, Citrus County; William S. Bullock, Judge.

Bill by William H. Smith and others against Société Anonyme la Floridienne J. Buttgenbach & Co., a corporation under the laws of the kingdom of Belgium, and another. Decree for defendants, and complainants appeal. On the death of William H. Smith, B. H. Griffin and Graves J. Smith, executors, were substituted as complainants. Affirmed.

Syllabus by the Court

SYLLABUS

Equity will reform a written instrument when by mistake or fraud it does not contain the true agreement of the parties; but it will only do so when it is satisfactorily made to appear that a mistake has been made or a fraud committed, for the writing should be deemed to be the sole expositor of the intent of the parties until the contrary has been established beyond reasonable controversy; and in such a case the burden is upon the complainants to establish the facts relied on for reformation by clear and satisfactory evidence.

Agency cannot be proved by the mere declarations of a supposed agent.

The evidence in this case examined, and found insufficient to justify this court in reversing the decree of the circuit court denying the prayer of a bill for the reformation of a written contract.

Where upon the final hearing, it clearly appears from the evidence that the complainant has a case which entitles him to relief but which by reason of some defect or omission in the allegations of the bill is not brought fairly within the issue, he will generally be permitted to amend the bill, and adapt its allegations to the case as proven; but when the proposed amendment would change the issue, or introduce new issues, or materially vary the grounds of relief generally an amendment of the bill is not permissible.

Applications to amend a bill should be made promptly after the necessity for the amendment has been discovered, and the allowance is within the reasonable discretion of the court.

COUNSEL

E. W. Davis and W. C. Monroe, for appellants.

J. M. Young and R. M. McConathy, for appellees. On the 11th of July, 1905, William H. Smith and Jennie Smith, his wife, and E. B. Borden, Jr., all residents of Goldsboro, N. C., filed their bill of complaint in the circuit court of Citrus county against Société Anonyme la Floridienne J. Buttgenbach & Co. (hereinafter referred to as the company), a corporation under the laws of Belgium, but doing business and maintaining offices in Citrus county, Fla., and Charles P. Savary, alleging:

'First. That on the 1st day of August, A. D. 1902, and prior thereto, and continuously from said date to the time of the commencement of this suit, the complainants W. H. Smith and E. B. Borden were and are the owners of the following described real estate in Citrus county, Fla., to wit: The W. 1/2 of the S.W. 1/4 of section 22, township 20, range 20 E. That complainants show that the defendants, Société Anonyme la Floridienne J. Buttgenbach & Co. (hereinafter for brevity called the defendant company), is engaged in the mining and preparing for market and shipping of phosphate rock, and for such purposes buys options and leases of lands containing deposits of such rock. That the defendant Savary was at the time of the execution of the option and leases hereinafter mentioned a practical prospector for deposits of phosphate rock.

'Second. Complainants further show that the lands above mentioned are valuable only for the deposits of phosphate therein and the timber growing thereon, and said defendant company desiring to lease said property for the purpose of mining the rock therein, and also being desirous of procuring the right and privilege of prospecting said land, in order that it might satisfy itself as to the location and extent of the phosphate deposits on said land, and also as to the quality and quantity thereof, procured said defendant Savary to enter into a certain option contract, which said option contract is hereto attached, marked 'Exhibit A,' and made a part of this bill. That in compliance with the request of the said Savary, these complainants entered into said option for the purposes, as therein stated, of permitting the said defendant Savary, or his heirs or assigns, to go upon said land and prospect the same, and agreeing, among other things, to enter into a contract of lease designated in said option contracts, should said Savary so desire, within 60 days from the date of said option contract; and it was further agreed in said option contract that the term of the said lease should be the period of 10 years.

'Third. Complainants show that, under the terms and conditions of said lease, the defendant company entered upon said land and prospected the same for the purpose of ascertaining the quality and quantity and extent of the phosphate deposits therein; and after so prospecting the said land, and having satised itself of the presence of phosphate rock of the quantity and quality mentioned in said proposed lease, it caused a contract of lease, in conformity with the contract mentioned and set out in said option contract to be prepared and forwarded to the complainants Smith and Borden, with the request that they (the complainants) execute the same and bring said lease, properly executed, to Inverness, Citrus county, Fla., and there receive the first payment of $5,000 specified therein, or, to send the said lease contract to some bank in Ocala, Marion county, Fla., and draw upon the said defendant company for said sum of $5,000.

'Fourth. Complainants further show that the defendant company, on the 18th day of October, 1902, procured the complainants' consent, in writing, that said lease might be assigned by said Savary to J. Buttgenbach & Co., a copartnership composed of J. Buttgenbach, Jules Rolin, E. Van de Rest, and E. Todros, a copy of which said written consent is hereto attached, marked 'Exhibit B,' and made a part hereof. And afterwards, to wit, on the 22d day of October, 1902, the defendant Charles P. Savary, and his wife, Maggie Savary, executed an assignment of said lease contract to the said J. Buttgenbach & Co.; said assignment being upon the condition, however, among other things, that said Buttgenbach & Co. should pay to the said Savary the sum of 15 cents per ton of 2,240 pounds of phosphate rock that it should mine, or is required to be mined under said lease--which said assignment is hereto attached, marked 'Exhibit C,' and made a part hereof.

'Fifth. And afterwards, to wit, on the 17th day of November, 1902, it having been made to appear to the complainants, and to said Savary, that said assignment to said J. Buttgenbach & Co. was a mistake, and that it was proposed and intended to assign said lease to said defendant company herein, the complainants and defendant Savary consented, in writing, that said J. Buttgenbach & Co. might transfer said lease contract to the defendant company herein, which said written consent is hereto attached, marked 'Exhibit D,' and made a part hereof. And your orators charge on information and belief that said J. Buttgenbach & Co. did transfer and assign all of their right, title, and interest in and to said lease to the defendant company herein.

'Sixth. Complainants further show that after said lease had been duly assigned and acknowledged by W. H. Smith and Jennie Smith, his wife, and E. B. Borden, Jr., all of whom lived at that time in Wayne county, N. C., W. H. Smith obtained from complainant Borden a power of attorney authorizing the said Smith to receipt for the proportionate part of the said $5,000 belonging to said Borden, as he had been requested by the defendant company to do, and carried said power of attorney, lease, and assignment thereof to J. Buttgenbach & Co., all duly executed, to Inverness, Fla., and there delivered the said lease and assignment thereof to one A. S. Anderson; he receiving from the said Anderson the sum of $5,000, the first payment agreed to be made by the terms of the said contract.

'Seventh. It is further shown that in said contract of lease defendant company obligated itself to pay the complainants a minimum royalty of $5,000 per year for the term of 10 years; said payments to be made quarterly. That after the delivery of said lease, and the payment of said sum of $5,000, the said A. S. Anderson, then the agent of the defendant company, suggested to the complainant Smith that the defendant company would erect a plant on said land mentioned in said lease of sufficient capacity to mine much more rock than the minimum required to be mined each and every year; and that said defendant company might mine the amount of rock required to be mined in less than the space of 10 years, and that, if it did so, it did not desire, after having paid the amount specified in said lease contract, for all the rock contained in said land, to have to pay the minimum rental for the balance of the term of 10 years. That the said defendant company did not care to have to pay for the same twice, and did not desire to have said annual minimum rental following it after it had been paid; and the said complainant Smith, desirous of only receiving the minimum agreed to be paid once, and only to be paid for the excess royalty over and above the said minimum rental, at the suggestion of the counsel for the complainant, Judge Richard McConathy, agreed that there might be inserted a clause in said lease 'or until the exhaustion of the rock required to be mined under this lease,' and said clause was after the execution and delivery of the said lease, without any consideration, and without the knowledge or consent of E. B. Borden, Jr.,

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