Proser v. Berger, 60-631

• Decision Date: 10 August 1961
• Docket Number: No. 60-631,60-631
• Citation: 132 So.2d 439
• Parties: Myron PROSER, Appellant, v. Martin BERGER and Prober Realty Co., Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 439

132 So.2d 439

Myron PROSER, Appellant, v. Martin BERGER and Prober Realty Co., Inc., a Florida corporation, Appellees.

No. 60-631.

District Court of Appeal of Florida, Third District.

Aug. 10, 1961.

Rehearing Denied Sept. 11, 1961.

Robert M. McClosky and Stanley S. Stein; Sibley, Grusmark, Barkdull & King, Miami, Beach, for appellant.

Rothenberg, Burris & Englander and Morris Berick, Miami Beach, for appellees.

Before PEARSON, TILLMAN, C. J., and HORTON and CARROLL, JJ.

HORTON, Judge.

The Plaintiff, Proser, seeks review of an adverse final decree entered in a suit for accounting, declaratory decree and other equitable relief. This suit arose out of a written agreement entered into between the parties on October 17, 1955. The agreement provided for a division of certain assets resulting in the appellee's becoming the sole stockholder of Prober Realty Co., Inc., which corporation owned real property in Pompano Beach, Broward County, Florida. The agreement provided, inter alia:

'10. It is agreed that the only consideration to be passed between the parties is as follows: the payment of Seventy-five Thousand ($75,000.00) Dollars from Martin Berger to Myron Proser, in manner following: by payment to Englander & Hoffman, as escrow agents, this date, the check of Martin Berger for Seven Thousand Five Hundred ($7,500.00) Dollars; on or before October 28, 1955, the balance of Sixty-seven Thousand, Five Hundred ($67,500.00) Dollars in cash. It is agreed that there are to be no further adjustments of any kind between the parties or the corporations, as regards this division of the assets of the existing corporations and partnership; with this proviso, that is to say: that the parties hereto have negotiated with the proper officials of the county of Broward, making claim for damages caused by said county to the property of the parties at Pompano Beach in connection with the erection by the county of a bridge or overpass in front of the store building at Pompano Beach; that Martin Berger is to succeed to the right, title and interest of the parties in and to any such claim, and will be entitled to receive any and all adjustments, payments or compensation thereof; that Berger will continue on his own behalf to press his settlement of said claim, and in this connection, Myron Proser agrees to render any and all assistance for which he may be called upon by Martin Berger. In the event such assistance is given from Myron Proser to Martin Berger, and when, as and if said Martin Berger receives any cash award by reason thereof, then the parties agree that Martin Berger will pay, and Myron Proser will have and receive in full satisfaction thereof, the equivalent of thirty (30%) percent of the net proceeds of said cash settlement, which amount, when, as and if due to Myron Proser, will be in addition to the sum of Seventy-five Thousand ($75,000.00) Dollars above mentioned. In the foregoing sentence where reference is made to assistance, the intention of the parties is that Myron Proser will give assistance to Martin Berger when required by Martin Berger, but that if an award for damages is made to Martin Berger, under a situation wherein Myron Proser was not called upon to assit, then nevertheless Myron Proser shall be entitled to receive the thirty (30%) percent of such award for damages.

'11. In the event that any part of the building or property of Prober Realty Co., Inc., at any time from and after the date hereof, is taken by any governmental agency, city, county or state, for government purposes by condemnation, then any award paid for condemnation will go to Martin Berger, free and clear of any claim or right of Myron Proser to participate therein. The intention of the parties is that the thirty (30%) percent provision of the preceding paragraph applies only to damages and not to a condemnation award.' [Emphasis supplied.]

Subsequent to this agreement, the appellee instituted a suit against Broward County and the State Road Department to recover just and full compensation for the wrongful and unlawful appropriation of a portion of the Pompano Beach property. Said appropriation occurred in December, 1954, and was without authority of law, and without the procurement of any grant or easement from appellee or his predecessors in title. As a result of this suit instituted in the circuit court in Broward County, the appellee received a $70,000 settlement.

This controversy centers primarily around the provisions of the agreement recited above. The appellant maintains that the $70,000 settlement received by the appellee was an award of damages as anticipated by the first quoted paragraph of the agreement and that the parties intended that the appellant was to receive thirty percent of such award.

Following a hearing in which testimony was taken, the chancellor entered a decree in favor of the appellant and awarded him the sum of $21,000 plus interest and costs. Upon petition, a rehearing was held and as a result, the chancellor entered the decree appealed wherein he found for the appellee and dismissed the complaint.

We conclude that the chancellor erred...