Kislak v. Kreedian

• Decision Date: 29 May 1957
• Citation: 95 So.2d 510
• Parties: Jay I. KISLAK and Ira A. Hotchkiss, and Mona Hotchkiss, his wife, Petitioners, v. Koren KREEDIAN, Respondent.
• Court: Florida Supreme Court

Page 510

95 So.2d 510

Jay I. KISLAK and Ira A. Hotchkiss, and Mona Hotchkiss, his wife, Petitioners, v. Koren KREEDIAN, Respondent.

Supreme Court of Florida, Special Division B.

May 29, 1957.

Joseph A. Varon, Hollywood, and Turnbull & Senterfitt, Orlando, for petitioners.

Nixon Butt, Orlando, and Adams & Judge, Daytona Beach, for respondent.

DREW, Justice.

As reluctant as we are to unduly extend the length of opinions, a proper evaluation of this appeal and discussion of the principles involved require the inclusion herein of the germane portions of the complaint filed in the trial court and around which this entire litigation revolves.

'3. Plaintiff, Koren Kreedian, and the Defendants, Jay I. Kislak, and Ira A. Hotchkiss and Mona Hotchkiss, his wife, have from time to time in the year immediately last past, individually and as joint venturers (in which two or more of said parties participated in equal shares) invested, speculated, purchased, sold and dealt in real estate; the Plaintiff, Koren Kreedian, and Defendant, Jay I. Kislak, having during the six months immediately last past, as venturers in equal shares, invested, purchased and dealt in a 700 lot tract of land in Palm Beach County, Florida.

'4. That Defendant, Jay I. Kislak, based upon the unusual success and the profits realized by said Defendant, Jay I. Kislak, and Plaintiff, Koren Kreedian, in their said speculative activities in connection with the 700 lot tract of land in Palm Beach County, requested Plaintiff, Koren Kreedian, to take a desk in the office of said Defendant, Jay I. Kislak, and to keep lookout for other lots and tracts of land in which they, said Plaintiff, Koren Kreedian, and said Defendant, Jay I. Kislak, might invest to carry on their speculative activities as joint venturers, each participating therein in equal shares.

'5. Plaintiff, Koren Kreedian, pursuant to the request of Defendant, Jay I. Kislak, did, on or about the 20th day of March, A.D. 1956, take a desk in the office of Defendant, Jay I. Kislak, and did subsequently, on or about the 28th day of March, 1956 learn of the availability for purchase of approximately 20,500 acre tract of land, known as the El Pico Ranch, in Brevard County, Florida, and owned by Heller Brothers of Winter Garden, Florida, and did immediately inform and advise Defendant, Jay I. Kislak, thereof, and at the instance of Defendant, Jay I. Kislak, and in his own behalf, did, on or about the 4th day of April, 1956, travel from Miami Florida, to Brevard County, Florida, for the purpose of viewing said property, making an investigation as to the advisability of the purchase of same and instituting preliminary negotiations therefor. Upon the return of Plaintiff, Koren Kreedian, to Miami, Florida, after having viewed the said property and made an investigation of the advisability of the purchase thereof and instituted preliminary negotiations therefor, he did report favorably to Defendant, Jay I. Kislak, who immediately, with the consent of Plaintiff, Koren Kreedian, contacted Defendant, Ira A. Hotchkiss, and interested him in joining with Plaintiff, Koren Kreedian, and Defendant, Jay I. Kislak, in the investment, purchase and speculation in said lands. That on Friday, the 6th day of April, A.D. 1956, Plaintiff, Koren Kreedian, and Defendant, Ira A. Hotchkiss, flew from Miami, Dade County, Florida, to Cocoa, Brevard County, Florida, in a plane chartered by Defendant, Jay I. Kislak, for the purpose of aerial and other inspection of said lands and the Defendant, Ira A. Hotchkiss, following such inspection, being then satisfied of the advisability of the purchase of said property, the Plaintiff, Koren Kreedian, at the instance of the Defendant, Ira A. Hotchkiss, and with the consent of Defendant, Jay I. Kislak, and in his own behalf, then communicated and commenced negotiations for the purchase of said property with James Heller in Winter Garden, Florida, one of the owners and representative of the owners thereof, and as a result of such communication and negotiations a verbal agreement was entered into by and between Plaintiff, Koren Kreedian, Defendant, Ira A. Hotchkiss on behalf of Kreedian, Kislak and Hotchkiss as joint venturers in the purchase of said property, and James Heller as part owner and representative of the owners thereof, for a price of $75.00 per acre, plus a real estate commission to be paid by the purchasers, which said oral agreement was subsequently, on the 10th day of April, 1956, except for the omission of Plaintiff's name therefrom, reduced to writing and duly executed by and on behalf of all persons and parties in interest, save and except the Plaintiff, Koren Kreedian, who did not appear as a party to the purchase and sale agreement because of the advice and representation of the Defendant, Jay I. Kislak, that it was not necessary that said Plaintiff's name appear on the contract and agreement for purchase, as said Plaintiff's interest was recognized and protected, which advice and representation of said Defendant, Jay I. Kislak, Plaintiff, Koren Kreedian, because of past associations and his confidence therein and because of the mutual trust and confidence reposed by Plaintiff in the Defendants, Jay I. Kislak and Ira A. Hotchkiss, as joint venturers in said transaction, Plaintiff did believe and relied thereon. A copy of said agreement is attached hereto and by reference made a part hereof.

'6. Notwithstanding, following the execution of said contract and on or about the 3rd day of August, A.D. 1956, the Defendant, Jay I. Kislak and Ira A. Hotchkiss, advised your Plaintiff, Koren Kreedian, they could and would not now recognize said Plaintiff's interest in and to the agreement and contract of purchase of said property or in and to the property the subject thereof and could not and would not permit and allow your said Plaintiff to share and participate in the benefits of said contract and agreement or the profits to be realized in the venture, but on the contrary the Defendant, Jay I. Kislak, on a take it or leave it basis advised and informed said Plaintiff that he and the Defendant, Ira A. Hotchkiss, would pay to said Plaintiff the sum of Ten Thousand ($10,000.00) Dollars cash or the sum of Fifteen Thousand ($15.000.00) Dollars at the rate of Five Thousand ($5,000.00) Dollars per year, for his interest in said contract and the interest in the subject thereof, which said proffers the said Plaintiff did then and there decline and refuse.

'7. Plaintiff, Koren Kreedian, has at all times stood ready, able and willing to pay his proportionate share in said venture and is now ready, able and willing to do so, nevertheless the Defendants, Jay I. Kislak and Ira A. Hotchkiss and Mona Hotchkiss, his wife, the premises notwithstanding, and notwithstanding the fact that said Plaintiff, as one of the joint venturers, expended great time and effort and was directly instrumental in and the moving cause in finding of the said property and the negotiations for the purchase thereof, now seek to wrongfully exclude said Plaintiff for their personal gain and enrichment; all to the great injury and damage to said Plaintiff.

'Wherefore, Plaintiff, Koren Kreedian, prays:

'(a) That the Court take jurisdiction of this cause and the parties hereto.

'(b) That Defendants, Jay I. Kislak and Ira A. Hotchkiss and Mona Hotchkiss, his wife, be declared and decreed to hold said aforesaid contract and agreement for the purchase of the property therein described, and the real property if same be before conveyed, in trust for the use and benefit of Plaintiff, Koren Kreedian, and Defendants, Jay I. Kislak and Ira A. Hotchkiss, as joint venturers and tenants in common.

'(c) That Defendants and each of them be jointly and severally enjoined and restrained, both by temporary and permanent order and decree of this Court, from in any wise whatsoever disposing of, secreting forfeiting or otherwise alienating or committing any action which would directly or indirectly inure to the prejudice, damage or injury of and to the Plaintiff, Koren Kreedian.

'(d) That a Receiver or other officer of this Court be appointed for the purpose of taking possession, control, management, operation and custody of the aforesaid contract and agreement and the real property the subject thereof, and the parties, joint venturers, Plaintiff, Koren Kreedian, and Defendants, Jay I. Kislak and Ira A. Hotchkiss, be ordered, directed and decreed to pay into the hands of said Receiver and/or the Registry of this Court, such monies as required for compliance with the terms and provisions of said contract and agreement for the purchase of the aforesaid property, and upon the closing of said transaction the title to said property be taken in the name of said Receiver or other officer of this Court and said property partitioned in accordance with the interest of the several joint venturers; all pursuant to the authority of this Court and the directions thereof.

'(e) In the alternative, that the Defendants, Jay I. Kislak, and Ira A. Hotchkiss, and each of them, be by appropriate order of this Court ordered, directed and decreed to forthwith assign, transfer and set over to the Plaintiff, Koren Kreedian, in accordance with the terms and provisions of paragraph 9 of said contract, an interest in and to said contract in accordance with his rightful share as a joint venturer therein.

'(f) That Plaintiff shall have such further and additional relief as may seem meet and proper in equity and good conscience and decree and judgment for his damages suffered and sustained in the premises.'

The defendants filed individual motions to dismiss which were incorporated in their answer. The lower court denied the various motions to dismiss the complaint and this appeal followed.

The principal question raised is the sufficiency vel non of the complaint claiming an interest as a joint adventurer in the purchase of real estate without alleging by...