Mills Rock Co. v. Mills

• Decision Date: 25 April 1939
• Parties: MILLS ROCK CO. v. MILLS.
• Court: Florida Supreme Court

188 So. 210

137 Fla. 607

MILLS ROCK CO. v. MILLS.

Florida Supreme Court, Division B.

April 25, 1939

Rehearing Denied May 9, 1939.

Suit by Mary Idella Mills, a widow, individually and as executrix of the estate of R. H. Mills, deceased, against the Mills Rock Company, a corporation, for rescission of an agreement and lease, an injunction, accounting, and other relief. From a money judgment for plaintiff, defendant appeals.

Affirmed. Appeal from Circuit Court, Dade County; Worth W. Trammell, judge.

COUNSEL

H. H Eyles, of Miami, for appellant.

Paul C Taylor, of Miami, for appellee.

OPINION

CHAPMAN Justice.

The parties to this suit will be referred to in this opinion as they appeared in the court below as plaintiff and defendant. On February 23, 1937, plaintiff filed in the Circuit Court of Dade County, Florida, her bill of complaint praying for a rescission of an agreement and lease, an injunction, and accounting and other relief. It was made to appear thereby that the plaintiff entered into an agreement and lease which provided for the excavation and removal of rock from three rock pits situated in Dade County. The agreed purchase price for the rock, as set out in the agreement and lease, in the first and second pits was the sum of 5¢ per cubic yard for first class rock and 2 1/2¢ per cubic yard for second class rock; while the rock excavated from the third pit was 10¢ per cubic yard for first class rock and 5¢ per cubic yard for second class rock. The rock pits were located on lands of plaintiff appropriately described. The agreement or lease sought to be cancelled was to be in force for a period of five years after April 1, 1936, and it likewise contained an option on the part of lessee to extend the agreement and lease for an additional five-year period. Certain personal property was described in the agreement and lease and the compensation for the use thereof was to be the sum of $100 per month.

It was alleged in the bill that the agreement and the lease, supra was obtained by deceit and through false and fraudulent representations on the part of the Secretary and Treasurer of the defendant corporation and that the true market value of the rock controlled by the agreement and lease was between 10¢ and 15¢ per cubic yard and that the plaintiff being an illiterate woman, sixty years of age, inexperienced in business transactions, was induced to sign the agreement and lease by the terms of which she was to receive from 2 1/2¢ to 10¢ per cubic yard, due to the misrepresentations of the officials of the defendant and others.

The record shows that after the issues were tendered and testimony thereon taken by the parties and a final hearing had before the Special Master by counsel for the respective parties, counsel for plaintiff below applied to the Court for authority to file an amended bill. The proposed amended bill followed the allegations of the original bill as to the relation of the parties, but there was a substantial departure in the allegations of false representation as a basis for the rescission of the lease, in that the amended bill sought a rescission of the agreement and lease upon the allegation that plaintiff was fraudulently induced to sign the agreement and lease, without first reading it, and upon the further fraudulent representation that the agreement for lease by the plaintiff provided in terms for the payment of 10¢ per cubic yard for all rock mined and removed from plaintiff's pits, and that the plaintiff, relying upon the false representations, signed the agreement and lease, which she later learned provided compensation considerable less than the amount so fraudulently represented, and all of which was done to her injury. The amended bill of complaint contains a prayer for substantially the same relief as the original bill of complaint.

The lower court by on order allowed the filing of the amended bill of complaint, and after an answer had been filed thereto made and entered an order again referring the issues so tendered to a Special Master for the purpose of taking testimony. The record shows that considerable additional testimony was offered by the parties after the filing of the amended bill and answer thereto, and on final hearing the lower court made and entered a final decree denying the prayer of the bill of complaint originally filed and likewise the prayer of the amended bill of complaint seeking a rescission, cancellation and reformation of the agreement and lease, but from all the testimony offered by the respective parties found that the defendant had not faithfully accounted for all sums of money and was indebted to the plaintiff for 23,253 cubic yards of soil and fill and 526 1/2 cubic yards of boulders removed from the plaintiff's land as described in the agreement and lease and for which she was entitled to recover of and from the defendant the additional sum of $2,882.49.

The defendant below perfected an appeal to this Court and has assigned the final decree above referred to as error, while the plaintiff below, by cross assignments of error has called into question the terms of the final decree denying prayer of the amended bill of complaint for a rescission, reformation and cancellation of the agreement and lease.

It is argued here that the lower court erred in permitting or allowing the plaintiff to file an amended bill after considerable evidence had been taken and argument of counsel for the respective parties had before the Master and again referring the case to the Special Master with additional directions to take testimony. Authorities cited to sustain the contention of counsel for defendant are, viz Griffin v. Societe Anonyme La Floridienne, etc., 53 Fla. 801, 44 So. 342; Guggenheimer & Co. v. Davidson, 62 Fla. 490, 56 So. 801; Barry v. Willard, 117 Fla. 236, 157 So. 669; Watkins v. Watkins, 123 Fla. 267, 166 So. 577; Biscayne Realty & Ins. Co. v. Ostend Realty Co., 109 Fla. 1, 148 So. 560...