Harper v. Bronson

• Decision Date: 23 January 1932
• Citation: 139 So. 203,104 Fla. 75
• Parties: HARPER v. BRONSON.
• Court: Florida Supreme Court

139 So. 203

104 Fla. 75

HARPER v. BRONSON.

Florida Supreme Court

January 23, 1932

Commissioners' Decision.

Error to Circuit Court, Orange County; Frank A. Smith, Judge.

Action by R. P. Bronson, as receiver of the Bank of Maitland against J. E. Harper. To review an adverse judgment defendant brings error.

Reversed and remanded, with directions.

COUNSEL

Hope Strong, of Winter Park, and G. P. Garrett, of Orlando, for plaintiff in error.

Maguire & Voorhis, of Orlando, for defendant in error.

OPINION

DAVIS C.

R. P Bronson, as receiver of the Bank of Maitland, the plaintiff, as indorsee, sued J. E. Harper on three certain promissory notes made by him, dated the 20th day of November, 1925, payable to the order of W. B. Joiner, trustee, on demand, one and two years after date, respectively. The declaration consists of three counts, one count being devoted to each of said notes. The defendant filed eleven 'second amended' pleas to each and every count of the declaration severally. In the first amended plea, it was averred in substance that plaintiff acquired title, ownership, and possession of the said notes after the maturity of same; that the consideration for the notes failed, in that they were given by the maker to evidence the purchase price of certain real estate described in the pleas, under and by virtue of a contract for sale and purchase, wherein the purchaser (payee) covenanted and agreed to convey and said premises to the maker, free of incumbrances by a good and sufficient deed, upon payment of the purchase price; that subsequent to the making of the contract and prior to default by the purchaser, and while he was in full performance of the contract, and prior to the transfer of the said notes, the said W. B. Joiner, trustee, conveyed by warranty deed the said property to the Union State Bank of Winter Park, and thereby breached and repudicated his said contract; that defendant entered upon the performance of the contract in good faith; that he was not at the time of the making of the contract, or afterward, placed in actual possession of the premises; and that he has never been in actual possession of the same. It was also averred that a copy of the contract was attached to the plea as an exhibit, and prayed to be taken as a part thereof, but such exhibit does not appear in the transcript as an exhibit to such pleas, though a contract does appear as Exhibit A to the original pleas.

The second, third, fourth, and fifth pleas are similar to the first plea, with this exception: Instead of alleging that, subsequent to the making of the contract and prior to default by the purchaser, the plaintiff conveyed away the property, and (1) the second plea avers that the vendor was not then, or at any time before the institution of the suit, the owner of the 'contracted title' to the said premises, or in a position to convey or assure it in accordance with his contract, and that the defendant (purchaser) did not learn of the defects of title until long after the making of the contract, and that he believed at the time of making of the contract the vendor had 'full authority and full title to make said contract'; (2) the third plea avers that the 'action was instituted while said W. B. Joiner, Trustee, was in default under said contract,' and that the defendant did not learn of defects in title and authority until long after the making of the contract; (3) the fourth plea avers that neither the said vendor nor the plaintiff, at any time prior to the institution of the action, tendered to the defendant a deed to the premises, or at any time offered to comply with the contract, or were in a position to comply therewith; (4) the fifth plea avers that at the date of the contract, and at all times since, the contract has been wholly unenforceable by the defendant, according to its terms, for the reason that the title to the property, at the time of the making of the contract, was in the said W. B. Joiner and three other persons, for none of whom Joiner was trustee, and for none of whom was he authorized to make the contract on their behalf, and for the further reason that each of the owners was married, and that Joiner had no authority as trustee to convey, or agree to convey, the dower interest of the wives of the said owners or any of them, and that defendant did not learn of the defects of title and authority until long after the making of the contract, etc.

The sixth, seventh, eighth, ninth, and tenth pleas are identical with the first five pleas, respectively, with the exception that they allege that the consideration for the notes was 'wholly wanting' in lieu of having 'wholly failed.'

The eleventh plea purports to be based on equitable grounds, and shows a transfer of the notes after their maturity; that they were given to evidence payments to be made under the said agreement for the sale and purchase of the said real estate, to which the vendor never had title nor had been authorized by the owners to sell; that, prior to the institution of the action, vendor had conveyed away the premises; that no tender of performance had been made by the vendor or the plaintiff; that W. B. Joinder, trustee, at the time of institution of action, and ever since, was insolvent; that vendor did not put defendant in possession of the premises; and that defendant has never been in actual possession of same, for all and by reason of which defendant is entitled to a cancellation and rescission of the contract and the said notes.

The plaintiff demurred to each of said pleas severally, and this demurrer was sustained by the court. A judgment was entered upon the demurrer, and the cause is here for review upon writ of error.

Plaintiff in error has assigned separately as error the ruling of the court sustaining the demurrer to each of the pleas.

If the demurrer was not good as to any one or more of the pleas as addressed to any one or more counts of the declaration, there should be a reversal of the cause.

Since a copy of the contract of sale and purchase does not appear in the transcript as Exhibit 1 to the 'second amended' pleas, though made a part thereof, and the clerk was directed to copy said pleas in making up the transcript, we must assume that a copy of the said contract was not attached to the said pleas when they were filed, and, though a copy of same was attached to and made a part of the original pleas, as shown by the record, we are precluded from referring to it for the purpose of determining the sufficiency of the said several second amended pleas. We must therefore rely upon the legal effect of said contract as shown by the said several pleas to determine whether or not there was error in the ruling of the court sustaining the demurrer to them.

A demurrer admits all facts well pleaded that are not inconsistent with law. Owen v. Baggett, 77 Fla. 582, 81 So. 888; Atlantic C. L. Ry. Co. v. Crosby, 53 Fla. 400, 43 So. 318; Brown v. Avery, 63 Fla. 355, 58 So. 34, Ann. Cas. 1914A, 90; Cornwell v. Williford, 73 Fla. 305, 73 So. 795. It does not admit conclusions that are not sustained by proper allegations, or that are contrary to law. Byrne Realty Co. v. South Florida Farms Co., 81 Fla. 805, 864, 89 So. 318; American F. Ins. Co. v. King Lbr. & Mfg. Co., 74 Fla. 130, 77 So. 168.

The notes declared upon were given to evidence a part of the purchase price of land under a contract containing a covenant for a conveyance of the premises in fee simple by a good and sufficient deed, upon the payment of the purchase price thereof by the purchaser. The demurrer admits that the plaintiff acquired the title to the notes after maturity thereof, that the defendant was not placed in possession of the property, and that he (the defendant), relying upon the promises of the vendor, was in full performance of the contract when the vendor, prior to default of the defendant, and prior to the transfer of said notes to the plaintiff, conveyed to Union State Bank of Winter Park all title that he held to the property.

In Kilcoyne v. Golden Beach Corporation (Fla.) 136 So. 350, 352, Mr. Justice Ellis, in speaking for the court, used this language: 'Naberhuis agreed to convey the land to Kilcoyne, and the record shows that never at any time has Naberhuis been in position to convey the land. That would be a good defense to any action by Naberhuis against Kilcoyne upon the contract.'

In Morganthaler v. Holl (Fla.) 134 So. 223, 224, suit was brought by the assignees of a contract for the sale and purchase of certain real estate against the contract purchaser to recover certain installments on the purchase price. The defendant pleaded: (a) That the plaintiff had no right, title, or interest in and to the premises described in the contract, and that he was unable to convey the said lands; (b) that the plaintiff, nor his assignors, had any right, title, or interest in and to the premises described in the contract, and that they were unable to convey the said lands; (c) a failure of consideration, in that the vendors had never owned the property which they agreed to convey that they had never acquired title to the property, but, at the time contract was made, the vendors were under contract to purchase the property from another party, but that they had abandoned their said contract, and by agreement had relinquished to such third party all right, title, and interest in said property, and that neither the vendors nor the plaintiffs had any right, title, or interest in the said property for which the obligation sued on was given. In reversing an order sustaining a demurrer to the pleas, this court said: 'The allegations of the pleas above referred to constituted a good defense to the action,' and quoted from McKinnon v. Johnson, 54...