Livingston v. Twyman

• Citation: 43 So.2d 354
• Parties: LIVINGSTON v. TWYMAN.
• Decision Date: 21 February 1950
• Court: Florida Supreme Court

Page 354

43 So.2d 354

LIVINGSTON v. TWYMAN.

Supreme Court of Florida, Division B.

Feb. 21, 1950.

Rehearing Denied March 16, 1950.

Anderson & Nadeau, Miami, for appellant.

J. M. McCaskill, Miami, for appellee.

HOBSON, Justice.

This appeal is from a final decree determining that a joint venture existed between the parties to this suit and from a prior order denying appellant's (defendant below) motion to dismiss. The record shows that the appellee, hereafter referred to as the plaintiff, brought an action to declare a trust, based on the theory of joint venture by reason of an oral agreement entered into by the parties in January of 1937, concerning the purchase and resale of certain real estate in Miami, Florida. We must look to a letter written January 20, 1937, by the plaintiff to the defendant purporting to confirm an oral agreement made that morning, for the terms and conditions of the undertaking. The letter describes the property to be purchased and contains the following recital: 'You [the defendant] are to advance the cash payments and the property then is to be conveyed to you subject to the indebtedness but without obligation personally on the notes or mortgages. * * * When the property is sold you are first to receive all the money which you may advance on the property and the net profits are to be divided equally between you and me. * * * As I told you, I will do all the work, see that the title is marketable. * * * and advise you when I think the property should be sold.' (Italics supplied.)

The plaintiff alleges that the property was purchased pursuant to this agreement and that later additional real estate was purchased subject to the same terms and conditions. There was subsequently executed between plaintiff as lessee, and defendant, as lessor, a ninety-nine year lease of one of the parcels of real estate described as the Flagler Street property, providing for an annual rental and an option to purchase. This lease contained a full general warranty of title and a covenant of quiet enjoyment by the lessor. It was later rescinded by mutual consent after the plaintiff had defaulted in the payment of taxes and his second annual rental installment. The plaintiff in a letter attached to his bill of complaint refers to this lease by saying: '* * * the transactions between you and me later which probably removed the Flagler Street lots from the profit sharing agreement. It is, therefore, primarily regarding the other two of the Southwest First Street lots that I write you.' (Italics supplied.)

The bill further alleges that the plaintiff, for the purpose of considering with the defendant the advisability of selling the real estate and dividing the profits therefrom, attempted to establish contact by letter with the defendant and received in reply a letter from her attorney denying that plaintiff had any interest in the property described or in any property owned by the defendant. The plaintiff asserts that the relief he is seeking is exactly what the contract provides, namely one-half of the net profits after all advances have been returned to the parties.

To this bill of complaint the defendant filed a motion to dismiss, setting out, among other grounds, the fact that the plaintiff has an adequate remedy at law, and failure of the bill to allege grounds sufficient for equitable relief. This motion was denied. The order denying the motion to dismiss is assigned as error on this appeal. The case was referred to a master who found that a joint venture existed between the parties and that by reason thereof the defendant held title to the property as tru...