Pepple v. Rogers

• Citation: 104 Fla. 462,140 So. 205
• Parties: PEPPLE v. ROGERS et al.
• Decision Date: 16 March 1932
• Court: Florida Supreme Court

140 So. 205

104 Fla. 462

PEPPLE v. ROGERS et al.

Florida Supreme Court

March 16, 1932

En Banc.

Action by Blanche Pepple against W. J. Rogers and others. From an order granting pleas of privilege filed by certain defendants, and from an order sustaining the demurrer of defendant named, complainant appeals.

Reversed and remanded.

BUFORD C.J., dissenting. Appeal from Circuit Court, Pinellas County; T Frank Hobson, judge.

COUNSEL

Lambdin & Ramseur, of St. Petersburg, for appellant.

McMullen McMullen & Pegue, of Clearwater, and Duncan, Hamlin & Duncan, of Tavares, for appellees.

OPINION

BROWN J.

The appellant, as complainant in the court below, filed a bill of complaint in the circuit court in and for Pinellas county against W. J. Rogers, a resident of Lake county, Fla., and W. J. Howey Company, and Orange Belt Securities Company, both being Florida corporations, each having an office and place of business in Lake county, Fla., and it being alleged that the Howey Company also had an office and place of business in St. Petersburg, Pinellas County, Fla. The purpose of the bill was to enjoin said W. J. Rogers from prosecuting an action at law which he had brought in the circuit court of Pinellas county to enforce against the complainant the collection of a certain note for $6,300, and to secure the rescission and cancellation of said note thus sued on, and also of a certain contract between the complainant and the W. J. Howey Company entered into at the time said note was executed, as a part of the same transaction, and to restrain said W. J. Howey Company from prosecuting any action at law or in equity upon said contract or on said promissory note. Unless the prayer for the cancellation of the 'articles of agreement' can be construed to refer to those executed with both companies, which is not at all clear, it does not appear that the bill prayed for any specific relief against the Orange Belt Securities Company; that company not being named in the prayer of the bill.

The bill alleged that on December 16, 1930, the complainant, a resident of Michigan, temporarily residing in St. Petersburg, Fla., was requested by the sales manager of the W. J. Howey Company in St. Petersburg to go to Howey-in-the-Hills along with a number of other tourists in one of the 'palatial' motor-busses operated by said company. That she did so, and that on her arrival at Howey-in-the-Hills, an agent and officer of the Howey Company showed her and induced her to take what he said was an option on five and a quarter acres of land on which was located a small grove of one year old citrus fruit trees, at the price of $1,200 per acre, but which, it is alleged, was not worth exceeding $300 per acre; that at said agent's solicitation and assurance that she was creating no legal liability whatsoever on her part, and never having had any experience with legal papers, and relying on the representation of said agent, she signed certain papers that were presented to her; that no papers or receipts were delivered to her at the time and she was given no opportunity to examine the same, the entire transaction being rushed through under high pressure and with the utmost rapidity; that two years prior to that time the complainant had suffered a complete nervous breakdown, since which time she had been in declining health and incapacitated to transact business and unable to direct or manage her business affairs, being constantly under the care of physicians and taking treatment for her nervous and mental condition. That the first indication complainant had as to the nature of the transaction was on December 31, 1930, when she received a letter from the W. J. Howey Company inclosing what purported to be an agreement signed by complainant and accepted by said company, and a few days later a similar communication from the Orange Belt Securities Company inclosing a duplicate of an agreement purporting to have been signed by her, copies of which agreements were attached as exhibits. The agreement with W. J. Howey Company is a contract of purchase of the land in question at the price of $6,300, to be paid by a note due two weeks after date; the other contract, purporting to be an agreement signed by the Orange Belt Securities Company and the Complainant, is a long contract, by which the Orange Belt Company was to cultivate and care for the citrus trees for $30 per acre per year for the first four years and $37 per acre annually for eight years thereafter, and contained many provisions with reference to the cultivation and fertilization of the land and the gathering and marketing of the crops after the trees came into bearing. That up to the time when she received these communications complainant had no knowledge or memory that she had signed a promissory note for any amount, and that on December 31st, previous to the receipt of the foregoing letters and documents, she had written the W. J. Howey Company a letter advising them that she could not raise a sufficient sum of money to exercise the option agreement which she understood she had signed and did not care to go forward with the same. The Howey Company acknowledged the receipt of her letter, and complainant, to her astonishment and consternation, discovered that she had in some way signed a note for $6,300, due December 31, 1930, which the Howey Company claimed to have sold to W. J. Rogers of Tavares, Fla., and that she then wrote the Howey Company that she had no knowledge of having signed any note and believed that she had merely received an option to purchase the property at the price of $6,300 as she had been assured by one of the company officials. That thereupon the Howey Company, through its secretary, wrote complainant advising her that the company did not consent to a rescission or cancellation of the purported agreement; that it had sold her note to said W. J. Rogers, who was in a position to collect the same. That complainant has since discovered that a gross fraud had been perpetrated upon her and that through the trickery of the representative of the Howey Company she had signed a note payable to the order of herself (and presumably indorsed by her), for the sum of $6,300, which the defendant claims to have sold to said W. J. Rogers; that on January 15, 1931, said Rogers had filed suit against the complainant on said note in the circuit court of Pinellas county, and that said suit was then pending against her. That the said W. J. Rogers was only an aide for the W. J. Howey Company and was not the legal and bona fide owner of said note, but acquired the same with full notice and knowledge of the fraud and misrepresentation of his codefendant in obtaining said instrument; that he had not paid anything of value for said note, which bore no indorsement or guaranty upon the part of the Howey Company, and that there was a conclusive arrangement existing between Rogers and the Howey Company whereby Rogers held the note as the purported assignee of the Howey Company in secret trust for the use and benefit of said company and that any amount recovered by him against the complainant would be paid over to his code fendant, which, knowing that he could not collect the note in his own name, had engineered a fraudulent assignment to Rogers in an attempt to collect the same in his name. That complainant did not receive any consideration for said note; that she had never had any experience with business affairs, her life having been devoted to the duties of a country school teacher; that she had been induced to sign such said paper writings by the fraudulent representation of the agent for the Howey Company, and was not given an opportunity to read the same. That said W. J. Howey Company is threatening to sue complainant on the articles of agreement; that complainant's remedy at law is incomplete and she is entitled to have such action at law enjoined and the articles of agreement canceled and rescinded, together with said promissory note, and that she has no adequate remedy save in a court of equity; that complainant offers to do any act which the court finds that in equity and good conscience she ought to do concerning the matters alleged in her bill. The bill was filed on March 2, 1931, and on motion of complainant a temporary injunction was granted.

Joint and several pleas of privilege were filed by W. J. Howey Company and the Orange Belt Securities Company, setting up among other things that both of said companies were Florida corporations and had their principal places of business in Howey-in-the Hills, Lake county, Fla., and that they nor either of them had at any time maintained a place of business of any agency whatsoever in the county of Pinellas; and that said contracts and note were all executed by the complainant in Lake county, Fla. The court, after taking testimony under said pleas of privilege, made an order granting the same.

Defendant Rogers filed a demurrer to the bill, which was sustained by the court on June 12, 1931. On June the 11th, the circuit judge granted the complainant leave to file an amendment to the bill of complaint, indorsing the order on the proposed amendment, which amendment was not actually filed, according to the transcript, until July 10, 1931, which was twenty-two days after the entry of appeal from the order sustaining the demurrer. However, we do not regard this amendment, even if we could consider it, as being necessarily material to the complainant's case.

From the order of the court granting the pleas of privilege filed by the two corporate defendants, and from the order sustaining the demurrer of the defendant Rogers to the complainant's bill, appeals were taken.

We will first consider the action of the court in sustaining the demurrer to the bill....