Nelson v. Ziegfeld

• Decision Date: 09 December 1930
• Citation: 100 Fla. 1433,131 So. 316
• Parties: NELSON et al. v. ZIEGFELD.
• Court: Florida Supreme Court

131 So. 316

100 Fla. 1433

NELSON et al. v. ZIEGFELD.

Florida Supreme Court

December 9, 1930

En Banc.

Error to Circuit Court, Palm Beach County; C. E. Chillingworth Judge.

Action by Nellie M. Kearns Nelson and husband against F. Ziegfeld. Judgment for defendant, and plaintiffs bring error.

Affirmed.

COUNSEL Ernest Metcalf and D. L. Southard, both of West Palm Beach, for plaintiffs in error.

E Harris Drew, of West Palm Beach, for defendant in error.

OPINION

BUFORD J.

The plaintiff in error sued the defendant in error for the payment of certain notes which had been given to secure the payment of a part of the purchase price of a certain parcel of land in Palm Beach county. The makers of the notes and a mortgage to secure the same had sold the property to one H P. Gray and one F. Ziegfeld. The deed conveying the property to Gray and Ziegfeld contained the following provision:

'By the acceptance of this deed the grantees herein hereby assume and agree to pay that certain mortgage dated the 29th day of June A. D. 1925, given by William B. Gray and Sarah E. G. Gray, his wife, to Joseph G. Nelson to secure the payment of three (3) certain promissory notes, two of said notes being for the sum of Six Thousand Six Hundred and Sixty-six Dollars and Sixty-seven cents ($6,666.67), and the third of said notes being for the sum of Six Thousand Six Hundred Sixty-six Dollars and Sixty-six cents ($666.66), the said notes being due and payable one (1) two (2) and three (3) years from the date thereof respectively. Each of said notes to bear interest at the rate of eight per cent (8%) per annum payable semi-annually.'

The declaration was based upon the contract consisting of the notes, nortgage, and consisting of the notes, mortgage, and the liability of Ziegfeld and his failure to pay.

The case was tried on the declaration and plea No. 1, which was as follows:

'For a first plea to the plaintiff's declaration, this defendant says that he did not promise as alleged,'

-- and second amended plea, which was as follows:

'Second: That before action he discharged and satisfied plaintiff's claim by payment.

'Third: That heretofore, on to-wit, subsequent to the twenty-ninth day of December, A. D. 1927, the agent of this defendant approached the plaintiff, Nellie M. Kearns Nelson, stating to the said plaintiff that the amount already paid on the principal and interest on the promissory notes and causes of action set forth in plaintiff's Declaration was much more than a fair rental value on the lands described in that certain mortgage deed in plaintiff's Declaration mentioned, during the time this defendant was in possession thereof, and was acknowledged so to be by the said plaintiff Nellie M. Kearns Nelson, she expressing herself as satisfied with her bargain, provided she got back the title to the lands, and retained the amounts paid, and that in line therewith the said agent of this defendant, F. Ziegfeld, proposed to the plaintiff Nellie M. Kearns Nelson, that this defendant would return the possession of the land over to the plaintiff herein, and execute unto the plaintiff, and secure the execution by the other parties interested in said transaction, a quit claim deed to the premises before the foreclosure thereof, so that she could retain tenants and secure others on the premises, in consideration of her releasing the said defendant F. Ziegfeld from any and all personal liability, on account of any balance due on the said promissory notes and/or causes of action in plaintiff's Declaration mentioned; that this proposition was unconditionally accepted by the plaintiff, Nellie M. Kearns Nelson, and the possession of the premises heretofore referred to was delivered to the plaintiff immediately, without foreclosure proceedings, and that she, the said plaintiff, then and there went into possession of the same, exercising dominion thereover, and has since said date collected the incomes, rents and profits thereof; that the agent of this defendant, prior to securing said quit claim deed, and within a reasonable time thereafter, was notified that suit had been instituted on the causes of action heretofore mentioned; that this defendant and the other parties interested in said lands are now, as then, ready, willing and able to deed said lands to the plaintiff, and that he, the said defendant herein, F. Ziegfeld, was thereby released and discharged from any and all liabilities, under that certain assumption agreement, the promissory notes and/or cause of action in plaintiff's Declaration set forth.

'Fourth That the plaintiff at the commencement of this suit was and still is indebted to the defendant F. Ziegfeld in an amount equal to the plaintiff's claim for that under the agreement...