Murphy v. Green
| Decision Date | 23 June 1931 |
| Citation | 102 Fla. 102,135 So. 531 |
| Parties | MURPHY v. GREEN. |
| Court | Florida Supreme Court |
Commissioner's Decision.
Error to Circuit Court, Polk County; H. C. Petteway, Judge.
Action by J. B. Green against D. E. Murphy. Judgment for plaintiff and defendant brings error.
Reversed.
Oxford & Cutts, of Lakeland, for plaintiff in error.
Johnson Bosarge & Allen, of Bartow, for defendant in error.
This cause is here upon writ of error to the circuit court of Polk county, to review a judgment entered against D. E. Murphy, as defendant below and in favor of J. B. Green, as plaintiff below, in an action based upon a claim for commission in sale of certain real estate.
The declaration, after setting up the usual common counts, in substance alleges in a special second count that defendant D E. Murphy entered into a contract with J. B. Green, plaintiff, wherein the former promised the latter that, if he would sell the 230 acres of land described, Green could have as a consideration for selling the property and sum of money in excess of $100 per acre received as the purchase price from the buyer; that on September 16, 1925, the property was sold to Hugh Wear for $115 per acre, which sale was duly consummated between Wear as purchaser and Murphy as seller; that, as a result, the defendant became indebted to plaintiff in the sum of $3,450 as commission, $1,150 of which had been paid; that it was agreed that $1,150 should be paid one year from November 2, 1925, and the balance in like amount in two years from said date, bearing interest at 7 per cent. until paid; that, though demand has been made, defendant refused to pay the said two sums or the interest thereon.
On July 2, 1928, the defendant filed his pleas to the common counts that he was not indebted nor did he promise as alleged; and for a third special plea defendant set up that he agreed to sell the property 'to the plaintiff, for the sum of $100.00 per acre and that the plaintiff, before taking deed to said land sold the same to Hugh W. Wear for $115.00 per acre,' and that, before taking title, the latter purchaser sold the property to Earle W. Webb for $135 per acre who was to pay one-third cash; that it was finally agreed by and between all parties that Webb was to be regarded as the original purchaser to whom conveyance by this plaintiff should be made; that the deed was made to Webb, who paid one-third in cash and gave two notes secured by a mortgage on the same property to defendant for the remaining two-thirds, the notes being payable on November 2, 1926, the on November 2, 1927, respectively; that 'defendant was to pay to plaintiff the difference in the purchase price of one hundred ($100.00) Dollars per acre and one hundred fifteen ($115.00) Dollars.' The plea further alleges 'that he gave this plaintiff, as evidence of the said indebtedness,' one note for $1,150 due November 2, 1926, and one in like amount due November 2, 1927; that 'the same was not to be paid except as the money was received from the said Earle W. Webb'; that each of the two notes contained the provision that: 'This note is binding only in the event that the note held by D. E. Murphy of same date is paid to him by Earle W. Webb, otherwise this note is null and void'; that the same were taken in full satisfaction and discharge of the cause of action here sued upon in said special count, and are still in possession of the plaintiff; and that said Earle W. Webb has failed and refuses to pay either of the said deferred payments on the land, and therefore the defendant is not liable on the two conditional notes.
On July 15, 1929, by stipulation of parties, the plaintiff added a third and fourth special counts to his declaration setting up and exhibiting as the causes of action respectively the said notes referred to in defendant's third plea, which notes had fallen due since the filing of the original declaration. The defendant filed his plea to said third and fourth counts in due course, admitting the execution and the terms of said notes, but alleged that the said notes described in said additional third and second counts of the declaration had not been paid because the said Webb had failed and refused to pay the said former notes secured by the mortgage made by Webb to Murphy, and that only upon the payment of said notes could defendant become liable for the payment of the said last notes which were made payable to plaintiff, Green. The plea further alleges that the mortgage securing the two prior notes of November 2, 1925, executed by Webb to defendant, had to be foreclosed against the said Webb because of default in payment, upon which a final decree had been entered, and that the property was bought in by defendant, Murphy, and the sale confirmed by the Court.
Plaintiff filed a demurrer to the above plea, and in substance alleged that the plea of defendant shows on its face that the said notes and mortgage securing same was foreclosed, and that the property was bought in by defendant, and in contemplation of law the notes given by Earle W. Webb to defendant were paid. The demurrer of plaintiff to this plea was overruled by the court.
It appears from the evidence that the ultimate effect of the foreclosure was that defendant took the property back after paying the expenses of the foreclosure suit. This could not be construed as 'a payment of the mortgage debt.' There are no allegations nor proof otherwise that the two notes secured by the mortgage were ever paid. It appears that by agreement of all parties Earle W. Webb was substituted for Hugh W. Wear, and that Webb made a cash payment of one-third of the purchase price of the land, and that plaintiff in due course received $1,150 in cash as one-third of his commissions.
It is shown that the contract between Murphy and Green for the sale of the property was not in writing, and there is evidence that some controversy arose when Murphy undertook to deliver the property to Wear, and about that time the following paper was signed and delivered by Murphy and wife to Green:
One of the most important issues involved in this suit is just what was the meaning and intent of the above last sentence....
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...was not false. This, of course, is Nill's defense, the adequacy of which we have to judge on this appeal. In Murphy v. Green, 102 Fla. 102, 135 So. 531 (1931), it was "A novation, as understood in modern law, is a mutual agreement between the parties concerned, for the discharge of a valid ......
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