Harrington v. Rutherford

• Decision Date: 17 November 1896
• Citation: 38 Fla. 321,21 So. 283
• Parties: HARRINGTON v. RUTHERFORD et al.
• Court: Florida Supreme Court

21 So. 283

38 Fla. 321

HARRINGTON v. RUTHERFORD et al.

Florida Supreme Court

November 17, 1896

Appeal from circuit court, Dade county; J. D. Broome, Judge.

Action by Eugene C. Harrington against William Rutherford and others. From an order sustaining a demurrer to the bill complainant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

1. As a general rule, fraud cannot be predicated upon a mere promise not performed.

2. To authorize the rescission of a contract on the ground that it was procured by false representations, the false assertions must be in regard to existing facts; and the nonperformance of a mere promise, without fraudulent intent, to do something in the future, in consideration of the execution of the contract, will not be sufficient to authorize its rescission.

COUNSEL

Robbins & Graham, for appellant

Geo. P. Fowler, for appellees.

OPINION

MABRY C.J.

The bill in this case, filed by appellant against appellees alleges that the former, at and before the transactions hereinafter set forth, was owner in fee of 85 acres or land consisting of two tracts, one of 70 acres, and the other of 15 acres, and both properly described; that complainant and defendant Rutherford had been jointly interested in a steamboat enterprise as partners, the latter being a silent partner, and, being indebted, had executed notes by complainant as principal, and indorsed by Rutherford and one P. W. Merritt, the latter being an accommodation indorser and a friend of complainant (the notes referred to, being three in number, are described); that being desirous of protecting his friend Merritt, and of being relieved of the obligation to pay said notes, complainant entered into an agreement with Rutherford to convey to him the 85 acres of land mentioned, if he would pay said notes; that the 15-acre tract had been conveyed to one Van Allen, a part of the consideration being that he should make certain improvements on the land, and, having been unable to make all the improvements, Van Allen had agreed to reconvey the 15-acre tract to complainant for $450, for which the latter was to execute his note, secured by mortgage on the place, it being worth much more than the sum mentioned; that the note and mortgage were executed, but, instead of having Van Allen convey the land back to complainant, had him convey it to Rutherford, in pursuance of the said agreement with him to pay the notes. Complainant conveyed the 70-acre tract to Rutherford, and he was to assume the mortgage given by complainant to Van Allen. The bill further alleges, using its language: 'And now the defendant Rutherford, conspiring with the defendant Rose Kiebel, who is a member of Rutherford's family, did cheat and defraud your orator into delivering, and procuring to be delivered, to him, without any consideration, the deeds to the land aforesaid, in this wise: The said Rutherford had prepared and sent to orator a typewritten agreement, in which he promised to pay said notes as aforesaid, and, by the use of said writing, procured orator to send on and deliver to him said deeds. Said writing is hereto attached as an exhibit [Exhibit H]. Having received said deeds, the said Rutherford at once conveyed said land to the defendant Rose Kiebel, and then utterly refused and neglected to pay said notes. Wherefore, by means of the wicked devices, covin, and fraud of the defendants, orator has parted with the title to his lands, and has not been relieved from his obligation to pay the notes hereinbefore described, indorsed by his friend Merritt, as aforesaid.' The agreement in writing, mortgage, and deeds are referred to as exhibits, and copies are filed with the bill. It is also alleged that the mortgage which complainant had given to Van Allen on the 15-acre tract was not recorded, and had been surrendered to complainant upon Rutherford's representation that he had paid it; but complainant found from the records of Dade county that Rutherford had executed a mortgage for $450 to Van Allen on the 15-acre tract, and this mortgage had been assigned by the latter to Rose Kiebel; that Rutherford was at the time of the transactions complained of, and the filing of the bill, insolvent, and executions against him had been returned unsatisfied. It is alleged that there was a pineapple plantation on the land, and was liable to go to waste, and it was in need of care by the rightful owner, and there was danger that the products of the property would be appropriated and sold by defendants for their own use, and they were not solvent.

The prayer is for a receiver; that defendants be enjoined from conveying, mortgaging, or otherwise incumbering the property; and that the deeds from complainant to Rutherford, and from him to Rose Kiebel, be declared null and void; also, that Rose Kiebel be decreed to convey to complainant the 15-acre tract of land conveyed by Van Allen to Rutherford, and by him to her; and for such other relief as will place complainant in the position he occupied with respect to said property before he was induced to part with the title, as alleged in the bill.

The court sustained a demurrer to the bill, on the ground that it did not make such a case as entitled complainant to any discovery or relief in a court of equity.

The writing marked 'Exhibit H,' by the use of which, it is alleged, the defendant Rutherford procured the deeds to the land to be delivered to him, is dated the 21st of February, 1891; and the deed to him from Harrington for the 70 acres bears date February 10, 1891. The deed from Van Allen to Rutherford is dated February 21, 1891. The bill states, in effect, that, by the use of the writing mentioned the deeds were procured to be delivered; and the allegation as to the delivery must, on demurrer, control, though the date of one of the deeds is prior to the writing marked 'Exhibit H,' as deeds take effect only from their delivery. We must conclude from the statements of the bill that complainant, Harrington, and defendant Rutherford, were equally liable for the notes, and that either or both of them, if...