Groner-Youngerman, Inc. v. Denison, GRONER-YOUNGERMA
| Decision Date | 09 December 1959 |
| Docket Number | No. 1275,GRONER-YOUNGERMA,INC,1275 |
| Citation | 117 So.2d 210 |
| Parties | , as Trustee, Appellant, v. E. O. DENISON, Appellee. |
| Court | Florida District Court of Appeals |
John R. Gould, Vero Beach, and Marvin W. Lewis, Shorenstein & Lewis, Miami Beach, for appellant.
J. M. Sample, Fort Pierce, for appellee.
This is an appeal from the granting of plaintiff's motion for summary decree of foreclosure, and subsequent order confirming the sale of the subject lands situated in St. Lucie County.
The complaint alleged the execution and delivery of the note and mortgage on June 28, 1957. It also alleged that the first installment became due on June 28, 1958, in the amount of $4,575 which inclujded 5% per annum interest on the principal sum of the note in the amount of $60,000; that the mortgage contained a provision for a 20 day grace period; that defendant failed to pay the annual installment on or before its due date; and that plaintiff, on July 20, 1958, notified the defendant that it exercised its option to declare the full amount of the note and mortgage due and payable immediately. The complaint also alleged that certain fire and extended coverage insurance in the amount of $30,000, which the defendant covenanted to keep in force and effect, was not paid; that the insurance had been cancelled, and that, in order to reinstate the insurance, plaintiff had to pay the premium in the amount of $503.88. The complaint concludes with the prayer that an accounting be had; that the mortgage be foreclosed, that a receiver be appointed, and that plaintiff recover the unpaid principal of $60,000 plus interest, insurance premium, reasonable attorney's fees and court costs.
The defendant filed an answer and counterclaim in which it admitted the execution and delivery of the note and mortgage, but denied that it knew that the mortgage contained a 20 day grace period. The defendant specifically denied that it failed to pay the annual installment when due, but stated that it was misled by the plaintiff as to the time when the payment was to be made. The defendant also denied the allegations of the complaint in reference to defendant's failure to maintain the required fire and extended coverage insurance policy.
As an affirmative defense the defendant alleged that the note and mortgage was prepared by the law firm of Denison and Lewis, of Fort Pierce, and more specifically by Royce R. Lewis, a partner in the firm; and that at the time these instruments were drawn, this firm represented the defendant and retained possession of the mortgage documents. The answer and affirmative defense pleading then stated that prior to the time when the installment became due and within the grace period, the defendant requested information from its attorneys, the above mentioned firm, as to the time when the payment was to have been made and the extent of the grace period; and that as a result of this inquiry, defendant was given to understand that the note and mortgage contained a thirty day grace period. The defendant alleged that it relied upon this information, and to the surprise of the defendant, it was informed on or about the 21st day of the grace period that the note and mortgage had a twenty day grace period and that defendant was in default. The affirmative defense then asserts that immediately upon receipt of such notice, defendant forwarded its check to the plaintiff in the amount of $4,575 covering the principal installment due together with accrued interest. The defendant further alleged that it was at all time ready, willing and able to pay the principal and interest when due, or within the thirty day grace period, and would have made the payment prior to the 20th day, except for the information furnished to defendant by plaintiff or his agent.
It was further stated that the check was forwarded to plaintiff on or about the 22nd day of the grace period, but that plaintiff returned the check to the defendant, thus refusing to accept it.
Upon request of the plaintiff, a receiver was appointed to care for the property during the pendency of the suit.
Thereafter plaintiff filed a motion for summary judgment, claiming that there was no issue of fact to be determined. The plaintiff alleged in this motion that the defendant had failed to pay the insurance premium required by the mortgage; that Stanley Sirotin, defendant's 'Agent, Officer and/or Director' was given a copy of the warranty deed conveying the property, who, in turn, gave the mortgage deed to plaintiff together with the note secured thereby; and at that time Stanley Sirotin was clothed with full indicia of authority to act for and on behalf of the defendant. Plaintiff's motion also asserted that Sirotin later acknowledged that the plaintiff 'had not informed defendant that the mortgage contained any provision for more than the twenty days of grace as set forth in said note and mortgage.'
It appears from the record that at the time of the execution of the note and mortgage, Sirotin, a real estate broker, represented the defendant in the transaction. However, Sirotin no longer is affiliated with defendant. When the defendant was informed by plaintiff that the mortgage was in default The defendant apparently contacted Sirotin, who, in turn, telephoned plaintiff regarding the length of the grace period. Thereafter plaintiff wrote a letter to Sirotin and then Sirotin answered this letter by a letter which is attached to plaintiff's motion for summary decree. This letter provides in part:
'Mr. E. O. Denison
'Denison Building
'Fort Pierce, Florida
'Dear Ed:
'When I received your letter of July 20th stating that there had been a default and that the default had continued for 20 days, I contacted you at once and, in accordance with our discussions, I immediately sent you a check in the amount of $4,575 in full payment of the first installment, including interest.'
There was also attached to plaintiff's motion affidavits as to what would be a reasonable attorney's fee in the foreclosure action.
An affidavit in opposition to plaintiff's motion was made by William H. Groner, president of the defendant corporation. This affidavit reaverred the allegations of the defendant's original answer and affirmative defense. In addition Groner stated that at no time did plaintiff inform defendant of the length of the grace period after defendant had informed plaintiff that the defendant intended to taken advantage of the grace period.
Subsequently, the plaintiff filed an answer to defendant's affirmative defenses and counterclaim. The plaintiff admitted that it received a check in the amount of $4,575 on July 23, 1958, which plaintiff returned and refused to accept. This unsworn answer then denied the allegations of defendant's answer and affirmative defenses. The defendant then moved to strike the plaintiff's answer as being filed late and for judgment on the counterclaim. This motion was apparently disposed of by the final decree.
Thereafter the defendant filed an affidavit of Stanley Sirotin in opposition to plaintiff's motion for summary decree. Sirotin stated that he was no longer an agent of defendant; that he handled the transaction in issue; and then in the final portion of the affidavit stated:
'4. There is no question about the fact that Plaintiff acted as our attorney and misled me completely as to the number of days of the grace period of the mortgage under foreclosure. In my letter to the...
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