Realty Bond & Share Co. v. Englar

Decision Date23 February 1932
Citation143 So. 152,104 Fla. 329
CourtFlorida Supreme Court

Rehearing Denied May 3, 1932.

Commissioners' Decision.

Error to Circuit Court, Dade County; Uly O. Thompson, Judge.

Action by Myrtle B. Englar, a free dealer, against the Realty Bond &amp Share Company, a Delaware corporation. Judgment for the plaintiff, and the defendant brings error.

Reversed and cause remanded, with directions.


Marshall F. Sanders, of Miami, for plaintiff in error.

LeSueur Gaulden, of West Palm Beach, for defendant in error.



The action in this case is based upon a promissory note under seal. The defendant filed four 'amended' pleas and an 'additional' or fifth plea to the declaration. The plaintiff demurred to, and also moved to strike, all of these pleas and each of them severally. The demurrers were sustained, and the motions were granted, and thereupon final judgment was entered for the plaintiff for the amount found to be due the plaintiff, including attorneys' fees.

The plaintiff in error has assigned as error the ruling of the court on the demurrer to the first, fourth, and fifth pleas respectively, the ruling on the motion to each of said first, fourth, and fifth pleas, and the inclusion in the judgment of a sum for attorneys' fees.

The first amended plea reads as follows:

'That the sole consideration for the making, execution and delivery of the note sued upon was the executory agreement on the part of the plaintiff to procure the payment to the defendant of two certain mortgage notes, each dated January 12th, A. D. 1926, each being designated as Note No. 1, one of which was in the sum of Two Hundred Fifty-Two Thousand Two Hundred Twenty-Five Dollars ($252,225.00), and secured by a mortgage on lands in Brevard County, Florida, and the other in the sum of Forty-Eight Thousand Three Hundred Seventy-Five Dollars ($48,375.00), and secured by a mortgage on lands in Indian River County, Florida, both of which were executed by San Sebastian Development Corporation. That said two notes above mentioned have matured and become due and the same have not been paid, and the plaintiff has failed to procure the payment of the same pursuant to her agreement to do so, as above mentioned, and has made no effort whatsoever to procure the payment of said notes or to otherwise perform her said agreement, and the consideration for the note sued upon has thereby failed.'

In Sumter County State Bank v. Hays, 68 Fla. 473, 67 So. 109, this court held that, where an executory contract is the sole consideration for a negotiable note, the contract and its breach may be shown in defense of an action on the note by a holder who took it with knowledge of the contract. See, also, Odlin v. Stuckey, 76 Fla. 42, 80 So. 291, and Barcus v. Wood, 92 Fla. 763, 110 So. 265. Though a note is absolute in its terms, it is competent for the maker, in an action by the payee, to plead and prove, if he can, a failure to perform a contemporaneous agreement which constituted the consideration for the note. Joyce on Defenses to Commercial Paper, p. 422.

In the plea under consideration, it is alleged that the agreement of plaintiff to procure the payment to the defendant of the two notes referred to in the plea was the sole consideration for the execution and delivery of the note in suit, and that the plaintiff had not procured the payment of the said two notes pursuant to her agreement, though they had become due. We are of the opinion that the allegations of the plea as framed are sufficient for the defense of failure of consideration to be proved under it, and that the court erred in sustaining the demurrer and in granting the motion to strike it. Winchester v. Hak, 98 Fla. 1071, 124 So. 812; Tedder v. Green, 79 Fla. 584, 84 So. 623; Hammers v. So. Exp. Co., 80 Fla. 51, 85 So. 246; McDaniel v. Harrell, 81 Fla. 66, 87 So. 631, 13 A. L. R. 1333; Dowling v. Fidelity Mutual Life Ins. Co., 81 Fla. 222, 87 So. 749. Since it appears that the said two notes had matured, it was not necessary to show the dates when they matured. We have examined the authorities cited by the defendant in error, but cannot see that they are applicable to this case.

In the fourth amended plea, 'the defendant reiterates as a part of this fourth amended plea, the recitations of the third amended plea in its entirety, and further alleges that the plaintiff has elected her remedy in the premises and has elected her forum, all of which are inconsistent with the remedies sought in this cause and one or more of said remedies are available to said plaintiff,' and it concludes with a prayer for equitable relief.

The third 'amended' plea purports to be on equitable grounds, and alleges, in substance, that on March 2, 1927, an action was brought by one Bentley in the United States District Court in and for the Southern District of Florida for the recovery of a judgment upon the note in suit here, and that said action was still pending, and, though brought in the name of Bentley, it was for the use of the plaintiff; that on December 23, 1927, another action was brought by the plaintiff upon the same note in Indian River county, Fla., and that pleas in abatement and pleas in bar were filed in the cause, but it is not shown what disposition was made of the case, nor that it is still pending; that still another action was brought on the 16th day of March, 1928, by the plaintiff against the defendant, in which action the defendant appeared specially and moved the court to quash the service and set aside the return upon the summons. It is not made to appear what disposition was made of the motion, but it is shown that no declaration was filed in the cause; that on the day the instant suit was brought, but, subsequent to the filing of the same, the plaintiff instituted an action in the same court against one R. H. Hemphill, the declaration being, as alleged, 'couched in such terms as would indicate a personal action for services of plaintiff against the said' Hemphill, but that the same was a 'guise and subterfuge to indirectly charge the said R. H. Hemphill with the obligation sued upon' in the instate suit; that this action and the other suits are for the sole purpose of harassing and persecuting the defendant and its officers to the extent of requiring them to pay an unjust obligation, and the defendant prays that it have such equitable relief as may seem meet and proper.

'The prevention of a multiplicity of actions at law is one of the special grounds of equity jurisdiction and for that purpose the remedy by injunction is freely used.' 32 C.J. 55; Gainesville Gas, etc., Co. v. Gainesville, 63 Fla. 425, 58 So. 785.

Pleas on equitable grounds in actions at law are purely defensive, and are never admissible when they raise issues with which the common-law side of the court is competent to deal. Harper v. Bronson (Fla.) 139 So. 203 decided this term; Pensacola Lumber Co. v. Sutherland-Innes Co., 50 Fla. 244, 39 So. 789; Robeson v. First Nat. Bank, 42 Fla. 504, 29 So. 325; Spratt v. Price, 18 Fla. 289; Marshall v. Bumby, 25 Fla. 619, 6 So. 480.

The pending of another suit may be set up in actions at law by pleas in abatement, but to be good they should allege that the former suit was pending at the time of filing of such plea; that the parties plaintiff and defendant are the same; that the same issue is joined in the former suit as in the suit before the court; that the subject-matter is the same; and that the proceedings in the former suit were taken for the same purpose. Davant v. Weeks, 78 Fla. 175, 82 So. 807; Glasser v. Hackett, 37 Fla. 358, 20 So. 532; Horter v. Commercial Bank & Trust Co., 99 Fla. 678, 126 So. 909; 1 C.J. 75-78, 87, 84; 1 Enc. Pl. & Pr. 758, 761. The plea, as a plea on equitable grounds, is clearly insufficient, and it is also insufficient if it should be regarded as a plea in abatement. The court committed no error in sustaining a demurrer to the plea.

The fifth or 'additional' plea avers that the said note was executed by the defendant, delivered to and accepted by the plaintiff 'as a real estate broker and a real estate salesman in finding a buyer and negotiating a sale for the defendant of certain real estate; that said service was performed in the State of Florida; that the said land was in Florida,' and that said service was performed after May 26, A. D. 1925, and prior to September 27, A. D. 1025, and that, at the time of the performance of said service, plaintiff had not complied with the laws of the state of Florida as to registration and payment of license fees as a real estate broker and as a real estate salesman.

Until chapter 10233, Laws of Florida 1925, went into effect on May 26, 1925, a real estate broker or salesman could lawfully operate in Florida by obtaining a license and paying a fee therefor (chapter 9177, Laws of Florida 1923, but there was no provision in our law that would prevent an unlicensed broker or salesman from obtaining a judgment for services rendered in the sale or purchase of real estate. Harrison v. Kersey, 67 Fla. 24, 64 So. 353. By the said act of 1925, the Legislature re-enacted, in substance, the provision that a real estate broker should pay a license fee. This statute also provided for a registration fee, and, as a penalty for nonpayment of the said fees, it provided that the broker or salesman should not be permitted to recover for services rendered or claimed to have been rendered, unless he, at the time of the transaction, had complied with the provisions of the Act, as to payment of license fees.

It is contended by the defendant in error that chapter 9177, Laws of Florida 1923, was repealed by the act of 1925, and that in consequence of such repeal there was...

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