Schmitt v. Bethea

• Decision Date: 06 August 1919
• Citation: 78 Fla. 304,82 So. 817
• Parties: SCHMITT v. BETHEA.
• Court: Florida Supreme Court

82 So. 817

78 Fla. 304

SCHMITT v. BETHEA.

Florida Supreme Court

August 6, 1919

Appeal from Circuit Court, Hillsborough County; F. M. Robles, Judge.

Suit by W. P. Bethea against August Schmitt. Decree for plaintiff and defendant appeals. Reversed.

Additional Syllabus by Editorial Staff.

Syllabus by the Court

SYLLABUS

If a written contract is ambiguous or obscure in its terms, so that the intention of the parties cannot be understood from the language used, parol evidence of the facts and circumstances in the light of which the parties acted and wrote is admissible, not for the purpose of changing the terms of the written instrument, but to elucidate the words used in the contract.

The general rule excluding parol evidence to vary the terms of a written instrument does not apply to a mere receipt.

Where the chancellor's findings of fact result from a misconception of the rules of evidence and their application to the facts offered in evidence, a decree in accordance with such findings, which is harmful to the appellant, will be reversed.

COUNSEL H. P. Baya, of Tampa, for appellant.

Dickenson & Dickenson, of Tampa, for appellee.

OPINION

ELLIS J.

This is a suit by the appellee against the appellant to cancel a mortgage held by the latter upon certain lands owned by the former as a cloud upon the title to the lands, and for an accounting to ascertain what, if anything, was due upon the mortgage from appellee to appellant.

Upon final hearing the chancellor found the equities to be with the complainant, Bethea, and ordered the mortgage to be canceled upon the payment to defendant by the complainant of $248.32. From this decree Schmitt, the defendant below, appealed.

The facts in the case as we read the record are as follows: In December, 1915, Schmitt was the owner of a tract of land in Hillsborough county, consisting of about 10 acres on the 'Boulevard' leading from the city of Tampa to 'Ballast Point.' Bethea purchased this land from Schmitt and agreed to pay therefor $19,000. The terms which were agreed upon and carried out were that Bethea would convey to Schmitt a house and lot located in another part of the city and valued at $2,300, and pay $50 in cash; the remainder of the purchase money, amounting to $16,650 was to be evidenced by two promissory notes for $8,325 each, payable one and two years after date, respectively. These notes were to be secured by a mortgage upon the 10 acres conveyed by Schmitt to Bethea. The mortgage contained the following provisions:

'That the said notes are to be paid in currency of the United States or by first mortgages made direct to August Schmitt or his order covering any lot or lots in the land described in this mortgage, full credit for such subsequent mortgage or mortgages to be given by August Schmitt on the notes secured by this mortgage. Such subsequent mortgages to be in conformity with the laws of Florida, and bearing 8 per centum per annum interest, and until payment of said note (the mortgagor) shall pay all taxes and assessments levied or assessed on the said premises or upon this mortgage, and the money secured thereby, and shall keep the buildings which now or may hereafter be erected thereon insured against all risk by fire in a sum not less than $----- in a good and responsible insurance company for the benefit of said party of the second part.'

According to an agreement between Mr. Bethea and Mr. Schmitt the former was to have the land cleared, surveyed, and platted into lots and streets, to build houses and pave the streets with shell. When Mr. Bethea sold the houses and lots, he was to take mortgages on them and turn the mortgages over to Mr. Schmitt as part payment on the debt.

Mr Bethea caused the land to be platted into lots and one street running from the Tampa Boulevard on the east to the county road on the west. There were about 40 lots according to the plat filed in evidence. Those lots to the south of the street were called the Bay City subdivision, and those to the north the Pine Bluff subdivision. He spent upon the improvements on the land 'approximately between $500 and $600.'

Some of the lots were sold by Bethea, the purchase price for which amounting to about $14,000 was secured by mortgages from the different buyers, and these mortgages, together with about $250 were delivered to Schmitt in cancellation and discharge as claimed by Bethea, of his mortgage to Schmitt.

In March, 1916, Schmitt executed to Bethea a receipt in the following language:

'W. P. Bethea, Contractor and Builder. Phone 2150-L Tampa, Florida three thirty-one sixteen. Received of W. P. Bethea one note and mortgage, signed by A. J. Garrett, for the sum of seven hundred dollars, one note and mortgage signed by E. S. Pierce for the sum of seven hundred dollars, one note and mortgage signed by R. P. Bethea for the sum of fourteen hundred dollars, and two hundred dollars in cash, making a total of three thousand dollars, which amount, three thousand dollars, is balance in full on payment of two promissory notes given to August Schmitt for sixteen thousand six hundred and fifty dollars ($16,650), which notes are secured by a mortgage on Bell-Vista Sub. of W. P. Bethea's Revised Map of lot fifteen of Hawley's subdivision, section thirty-four, township twenty-nine, range eighteen, and that the said note for said sixteen thousand six hundred and fifty dollars is hereby acknowledged to be fully paid and discharged. [Signed] August Schmitt. Witness: A. W. Baxley and R. P. Bethea.'

This was a mere acknowledgment of the receipt of money and other property in payment or satisfaction of a debt. The writing contained no independent or distinct contract.

In his answer, which was under oath, Schmitt averred that the complainant had cut some of the underbrush off the land opened one street, dug a small well, had spent less than $500 in improvements, had built no houses on the land, and had done nothing beyond the work mentioned to increase the value of the property; that the complainant had delivered to him a mortgage from the Tampa Plumbing & Heating Company for $2,900 on four of the lots, and that that sum is largely in excess of the value of the lots; that the company had paid nothing to the complainant on account of the purchase price; also a mortgage from J. L. Branch for $3,500 on three of the lots; that he had paid nothing on the purchase price, and the amount was greatly in excess of the value of the lots; also a mortgage from R. S. Davis for $7,200 on nine of the lots; that he had paid nothing on account of the purchase price, which was greatly in excess of the value of the lots; also a mortgage from A. J. Garrett for $700 on one lot; that he paid nothing on account of the purchase price of the lot, which is in...