Masser v. London Operating Co.

• Decision Date: 23 August 1932
• Citation: 145 So. 72,106 Fla. 474
• Parties: MASSER et al. v. LONDON OPERATING CO.
• Court: Florida Supreme Court

145 So. 72

106 Fla. 474

MASSER et al. v. LONDON OPERATING CO.

Florida Supreme Court

August 23, 1932

Rehearing Denied Nov. 2, 1932.

On Motion Recall Mandate and on Extraordinary

On Motion to Recall Mandate and on Extraordinary Dec. 12, 1932.

Commissioners' Decision.

Suit by Harry Masser, sometimes known as Harry Messer, and another against the London Operating Company. From a decree dissolving a temporary injunction and from a final decree of dismissal, complainants appeal, and defendant assigns cross-error.

Reversed and cause remanded, with directions.

See also, 145 So. 79.

On Motion to Recall Mandate and on Extraordinary Petition for Rehearing. Appeal from Circuit Court, Dade County; Paul D. Barns, Judge.

COUNSEL

Aronovitz & Goldstein, Vincent C. Giblin, and R. A. Johnston, all of Miami, for appellants.

Price, Price & Hancock, Otto C. Stegemann, William B. Farley, and Carl T. Hoffman, all of Miami, for appellee.

OPINION

DAVIS C.

The appellants, whom we will refer to as the lessees, and the appellee, whom we will refer to as the lessor, under date of April 15, 1930, entered into a written agreement, 'wherein the Lessor leased to the Lessees a hotel building, known as the London Arms Hotel, located at Miami Beach, Florida, for a period of three years after November 1st, 1930. The Lessor agreed to deliver possession of the property to the Lessees on November 1st, 1930. The Lessees agreed to pay to the Lessor, as rental for the property forty-five thousand dollars ($45,000.00). Five thousand dollars ($5,000.00) of the rental was paid upon the execution of the agreement, ten thousand dollars ($10,000.00) was payable on November 1st, 1930, seventy-five hundred ($7,500.00) on February 15th, 1931, fifteen thousand dollars ($15,000.00) on November 1st, 1931, and seventy-five hundred dollars ($7,500.00) on November 1st, 1932. The ten thousand dollars ($10,000.00) payable on November 1st, 1930, was paid November 3rd, 1930, the date upon which the Lessees went into possession of the leased property. In the agreement of lease, the Lessor covenanted as follows (Tr. 17); 'that it will paint the woodwork, walls and ceilings of the sleeping rooms and halls of the premises and will complete the solarium on half of the roof in the following manner on or before November 1st, 1930: to-wit: to build a salt wooden floor with a six foot partition in the middle and a four foot screen on the outside, pipe and canvas to be approved by the Building Inspector.”

The agreement also contains, among others, the following provision:

'10. That the lessees have examined and know the condition of the premises and will receive and accept same in its present condition on November 1, 1930, with the exception of the painting and completion of the solarium as herein provided for.'

On March 25, 1931, in a suit theretofore commenced in Dade county, Fla., by the lessees, complainants filed their amended bill of complaint for specific performance of certain covenants of the lease alleged to be binding upon the lessors, and for an injunction restraining the lessor from bringing summary ouster proceedings for the nonpayment of the installment of rent in the amount of $7,500, which became due and payable on February 15, 1931. A demurrer to the amended bill was filed the said 25th day of March, and on the same day an order of the court was filed overruling the demurrer and temporarily restraining the lessor from 'enforcing a forfeiture of the lease, described in the amended bill, for non-payment of the Seventy-five Hundred ($7,500.00) Dollar installment of rent due to the Defendant on the 15th day of February, A. D. 1931, as described in the amended bill, and from filing proceeding at law, or otherwise interfering with the possession by the Complainants of the premises described in the amended bill of complaint and in the said lease; provided that the said Complainants shall first pay into the registry of this Court to the Clerk thereof, subject to the further orders of the Court in this cause, the said sum of Seventy-five Hundred ($7500.00) Dollars, on or before the 25th day of March, A. D. 1931,' and providing also for the filing of a bond before the injunction should become effective. The said sum of $7,500 was paid into the registry of the court and the said bond was given pursuant to the terms of the order. On the 3d of April, the lessor filed a motion to dissolve the injunction, and on the 6th day of April, 1931, the lessor filed an answer to the bill. The motion to dissolve the injunction came up for a hearing, and thereupon the court, on May 13, 1931, ordered and decreed that the said injunction be dissolved and set aside. From this order the lessee appealed to this court. The appeal did not stay the suit, so the cause proceeded to a final hearing after it had been referred to a master before whom a great volume of testimony was taken. The final decree, omitting the names of the parties, reads as follows:

'The above styled and entitled cause comes on before this court for final hearing and upon exceptions filed by the complainants to the report of the master, and upon defendant's petition for an order requiring the Clerk of this Court to pay to the defendant the Seventy-five Hundred Dollars ($7,500.00) now in the registry of this court in this cause, and argument of counsel for the respective parties having first been had, and the court being fully advised in the premises, it appears unto the court that said bill is without equity (which makes it unnecessary to consider the master's report and exceptions thereto), and it further appearing unto the court that there is paid into the registry of this court the sum of Seventy-five Hundred Dollars by the complainants herein as an installment of rent due the defendant on the 15th day of February, 1931, and that same has been paid into court pursuant to an order of this court made on the 24th day of March, 1931, and that said payment was made as appears by said order subject to the further orders of the court in this cause,

'It is considered, ordered, adjudged and decreed that

'(1) said cause be and the same is hereby dismissed without prejudice, however, to the rights of the parties;

'(2) That the said sum of Seventy-five Hundred Dollars ($7,500) deposited in the registry of this court be paid by the Clerk of this Court on or after the 1st day of February, 1932, to the London Operating Company to be applied upon that installment of rent falling due on the 15th day of February, 1931, as described in said bill of complaint and amended bill;

'(3) That the defendant, The London Operating Company, a Florida corporation, do have and recover of and from the complainants, Harry Masser, sometimes called Harry Messer, and Morris Baron, the cost of these proceedings, to be hereafter taxed.'

From this decree the lessees took an appeal. At the request of appellants, the two appeals have been consolidated here and argued together.

Upon the appeal from the interlocutory order, appellants have assigned as error the ruling of the court in dissolving and setting aside the temporary injunction theretofore granted. Upon the appeal from the final decree, the appellants have assigned as error the making of said decree; the order dismissing the cause; and also 'its order of final decree in that it was error for the Court to direct the clerk of the court to pay to the London Operating Company, on or after February 1st, 1932, the sum of $7,500.00, deposited in the registry of the court by the complainants, which sum as directed by the Court was to be applied upon the installment of rent falling due on February 15, 1931, as described in the Amended Bill of Complaint.'

If the bill as amended is without equity, and no error was committed by the court in dismissing the cause for that reason when it came up for final hearing, it follows that the order dissolving the said injunction from which the first appeal was taken should be affirmed.

In the brief filed here in support of the appeal from the final decree, the able solicitor who signed it says:

'I cannot argue with conviction that the chancellor below erred in dismissing the cause, upon the sole ground that the amended bill is without equity, although the appellee's demurrer to the amended bill had been previously overruled by another judge and the cause had progressed to a final hearing after the taking of the proofs. It will not be my purpose, therefore, to argue the appellant's first or second assignment of error, both of which are predicated upon the dismissal of the amended bill for want of equity.'

But he also says:

'It is well to state, however, that my associate counsel entertain the conviction that the amended bill does state a cause for equitable relief; but it is unnecessary for them to file another brief upon this appeal because their views are fully set forth in a brief filed in this Court upon another appeal, which was from an interlocutory order in the cause.'

Since the question raised upon the appeal from the interlocutory decree is not argued by appellants to sustain the appeal from the final decree, we deem it best to decide whether or not the court erred in dissolving the temporary injunction.

Upon the appeal from the interlocutory decree, lessees contend merely that the lessor breached its covenant to paint, resulting in damage to the lessees, that the lessor threatened to commence summary proceedings to oust the lessees from the property for the nonpayment of rent, and that an action at law for damages is not adequate relief to lessees.

It has been declared repeatedly by this court that the granting and dissolving of temporary injunctions lies in the sound discretion of the court. See I. R. S. Co. v....