Levitt v. Axelson
| Decision Date | 29 June 1931 |
| Citation | 135 So. 553,102 Fla. 233 |
| Parties | LEVITT et al. v. AXELSON. |
| Court | Florida Supreme Court |
Rehearing Denied Aug. 13, 1931.
Suit by Ivar Axelson against H. Levitt and Levitt Properties, Inc. From a decree for complainant, defendants appeal.
Final decree on rehearing in complainant's favor reversed, and original decree for defendants affirmed, without prejudice to complainant's right to relief at law. Appeal from Circuit Court, Monroe County; A. J. Rose Judge
Worley & Worley and Loftin, Stokes & Calkins, all of Miami, for appellants.
Huber Blackwell & Gray, of Miami, and D. A. McDougal, of Sapulpa Oki., for appellee.
This is an appeal from a final decree made on rehearing in favor of complainant for a money judgment against the defendant after the court had originally entered a decree finding the equities with defendant and denying all the relief sought.
The facts in the case involved a typical boom-time real estate transaction in which several of the parties were interest. The controversy finally narrowed down to a dispute between Axelson, the complainant in the court below, and Levitt defendant in that court, as to whether or not Axelson had a one-sixth undivided interest in the profits arising from the sale of the land involved by Levitt, and also whether or not Axelson was entitled to a one-fifth of a 10 per cent. commission of the sale price which Levitt is alleged to have promised to pay to Axelson but did not do so. Accordingly Axelson prayed for a money decree against Levitt for one-fifth of Levitt's commission. The court denied all of the complainant's relief except the personal money decree for the alleged real estate commission. Accordingly the final decree of the court was that the complainant, Ivar Axelson, should have and recover of and from the defendants H. Levitt and Levitt Properties, Inc., a corporation, the sum of $17,991.60. It is from this decree that the appeal was taken.
The original decree of the court was that the equities were with the defendants, and that complainant's amended and supplemental bill of complaint should be dismissed. In petitioning for a rehearing, the complainant based his prayer for same on the ground that the court had overlooked the fact that complainant's bill of complaint was in three aspects, as follows: (1) That a case was stated for an accounting by a trustee, one of the defendants, to his beneficiary, the complainant, for trust funds; (2) that a case was stated for the establishment and enforcement of a trust in real estate; (3) that a case was stated for the collection by the complainant from the defendants of a commission for the sale of lands owing by the defendants to the complainant.
As the chancellor expressly reaffirmed his findings against the complainant on the first two aspects of the case, it is only necessary to consider whether or not it was proper to enter a decree in favor of complainant against defendant for the real estate commission claimed for the sale of lands as set up in the amended and supplemental bill to which a demurrer had been interposed and was overruled by the court on final hearing.
It is our view that the court below was right in rejecting the case in its first two aspects as above stated, and that the cross-assignments of error of the appellees thereon are not well taken. This brings us to a consideration of the question of whether or not a court of chancery can enter a personal decree for the payment of money claimed as a part of a broker's commission for effecting a sale of a parcel of real estate when no other relief is decreed to the complainant and the transaction involving the claim of real estate commission is an entirely different cause of action interjected into the suit by the complainant as a ground of relief additional to the other equitable relief sought.
We think this question must be answered in the negative on the authority of Chabot v. Winter Park Co., 34 Fla. 258, 15 So. 756, 43 Am. St. Rep. 192; Glinski v. Zawadski, 8 Fla. 405; Gentry-Futch Co. v. Gentry, 90 Fla. 595, 106 So. 473.
In the last-cited case the rule was stated by this court to be as follows: 'While a court of equity, having once obtained jurisdiction of a cause, will retain it for all purposes and administer complete relief, yet, in order to authorize relief which can be obtained in a suit at law, there must be some substantial ground of equitable jurisdiction both alleged and proven; otherwise a court of equity will not retain...
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...Insurance Company, 1939, 137 Fla. 587, 188 So. 764; Gibson v. American Ins. Co., 1941, 146 Fla. 171, 200 So. 357.10 Levitt v. Axelson, 1931, 102 Fla. 233, 135 So. 553; Mortgage Investment Foundation v. Eller, Fla.1957, 93 So.2d 868; International Hod Carriers', etc. v. Heftler Construction ......
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...out of or connected with the subjectmatter of the original bill.' See, also, Lovett v. Lovett, 93 Fla. 611, 112 So. 768; and Levitt v. Axelson (Fla.) 135 So. 553. reason for the above rule and statute providing that the counterclaim or set-off must constitute a subject-matter for an indepen......
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