McMullen v. McMullen, s. 2902
| Decision Date | 12 October 1962 |
| Docket Number | Nos. 2902,2903,s. 2902 |
| Citation | 145 So.2d 568 |
| Parties | Chester B. McMULLEN, Jr., et al., Appellants, v. J. Tweed McMULLEN et al., Appellees. |
| Court | Florida District Court of Appeals |
Milton D. Jones, Clearwater, and Dye & Dye, Bradenton, for appellants.
S. E. Simmons of Bussey, Simmons & Owen, St. Petersburg, Mann, Harrison, Mann & Rowe, St. Petersburg, and Shackleford, Farrior, Stallings, Glos & Evans, Tampa for appellees.
Appellants-plaintiffs, Chester B. McMullen, Jr., and Ruth D. McMullen, H. H Baskin, Jr., and Anne H. Baskin filed their amended complaint in chancery, seeking specific performance against the appellees-defendants, J. Tweed McMullen, E. G. Green, Albert P. Rogers, and Albert P. Rogers, Inc., a Florida Corporation, after transfer of this cause, pursuant to our decision in McMullen, et al v. McMullen, et al., Fla.App.1960, 122 So.2d 626, determining the question of venue. Upon motions severally filed, the court dismissed the amended complaint as to all of the defendants except J. Tweed McMullen. The plaintiffs declined leave to further amend, and the court thereupon dismissed the cause as to the defendants, Albert P. Rogers, Albert P. Rogers, Inc., and E. G. Green with prejudice. The court retained jurisdiction of the defendant E. G. Green because there was a cross-claim pending against him.
Case No. 2902 exists by virtue of the appellants' Notice of Interlocutory Appeal filed pursuant to the provisions of Florida Appellate Rule 4.2, 31 F.S.A., and Case No. 2903 exists by virtue of appellants' Notice of Appeal as if the decree appealed from was a final decree.
Prior to discussion of the facts, we pause here to comment upon the first point raised by the parties; that is, is the appealed decree an interlocutory decree, or is it a final decree? The question was answered in Welch & Co. v. Johnson, Fla.App.1962, 138 So.2d 390. The decree is a final decree because it terminated the litigation between the plaintiff and the defendants, as to whom the cause was dismissed with prejudice, and it left nothing to be done in the way of further judicial labor as to those defendants.
Plaintiffs' amended complaint alleged that the plaintiffs, as the sellers, entered into a written contract, under seal, with 'J. Tweed McMullen, as Trustee' as the purchaser, in which the sellers agreed to sell, and the purchaser agreed to buy real property in Manatee County, Florida; that prior to the execution of the contract, plaintiffs had listed the property for sale with Albert P. Rogers and Albert P. Rogers, Inc., both real estate brokers; that subsequently, Rogers informed the plaintiffs that he was 'cobrokering' the deal with the defendant Green, a real estate broker; that the property was sold; that the broker's attorney, the defendant, J. Tweed McMullen, prepared the contract described; and that at the time of the execution of the contract, defendant J. Tweed McMullen did not disclose to the plaintiffs that he was acting only as agent for others, nor the names or identity of his principals for hwom he may have been acting. The amended complaint further alleged that on the date set for closing, J. Tweed McMullen refused to close; that subsequently the plaintiffs discovered that the defendants, Albert P. Rogers, Albert P. Rogers, Inc., and E. G. Green were the real purchasers of the property and the undisclosed principals for whom McMullen was acting as agent; and that the binder was paid by these alleged undisclosed principals. The plaintiffs prayed for a decree holding the undisclosed principals and their alleged agent all to be liable under the contract and for a decree of specific performance against them.
The appellants contend that vendors can hold undisclosed and unknown principals liable as the real purchasers to a written contract for the sale of real property where the contract is executed by the agent of the unknown principals, under seal, where the seal was unnecessary to the validity of the contract. The court below held that a contract, under seal, was not enforceable against the undisclosed principals, and we affirm.
At Common law a sealed instrument was looked upon as a most solemn engagement and no one not a party could be sued upon it. As a necessary consequence the courts adopted and for countless generations...
To continue reading
Request your trial
-
Mortgage Guarantee Ins. Corp. v. Stewart, 81-1274
...therefore, have jurisdiction to entertain this appeal as an appeal from a final order. Art. V, § 4(b)(1), Fla.Const.; McMullen v. McMullen, 145 So.2d 568 (Fla. 2d DCA 1962); compare Gries Investment Co. v. Chelton, 388 So.2d 1281 (Fla. 3d DCA The plaintiff Mortgage Guarantee Insurance Corpo......
-
Washington Sec. Co. v. Tracy's Plumbing & Pumps, Inc., 4542
...894, 895 distinguishing the Womack decision.4 See Evin R. Welch & Co., Inc. v. Johnson, Fla.App.1962, 138 So.2d 390; McMullen v. McMullen, Fla.App.1962, 145 So.2d 568.5 In 1760 Charles Macklin said that 'The law is a sort of a hocus-pocus science.' We prefer the statement of his contemporar......
-
Schneider v. Manheimer
...of the claims of that party is final and appealable. Shute v. Keystone State Bank, Fla.App.,App.1963, 159 So.2d 106; McMullen v. McMullen, Fla.App.,App.1962, 145 So.2d 568. The rule in Florida is that certiorari will not lie to review the judgment of an inferior court if there is any other ......
-
Cordell v. World Ins. Co.
...such 'split' judgments or decrees when final must be appealed or the right will be forfeited by the passage of time. (McMullen v. McMullen, 145 So.2d 568 (Fla.App.2d, 1962) and Evin R. Welch & Co. v. Johnson, 138 So.2d 390 (Fla.App.2d, 1962))." (159 So.2d at page In Mendez v. West Flagler F......