Slaughter v. Barnett

• Decision Date: 27 March 1934
• Citation: Slaughter v. Barnett, 114 Fla. 352, 154 So. 134 (Fla. 1934)
• Parties: SLAUGHTER et al. SLAUGHTER v. BARNETT. SLAUGHTER v. SAME.
• Court: Florida Supreme Court

154 So. 134

114 Fla. 352

SLAUGHTER et al.SLAUGHTER v. BARNETT. SLAUGHTER v. SAME.

Florida Supreme Court, Division A.

March 27, 1934

Error to Circuit Court, Orange County; Frank A. Smith, Judge.

Common-law action by Gordon J. Barnett against C. M. Slaughter, and suit in equity by Gordon J. Barnett against C. M. Slaughter and others.From an adverse decree, defendants in the equity suit appeal, and defendant in the law action brings error to review judgment entered therein for plaintiff.

Judgment reversed in the common-law action, and bill of complaint in the equitable suit dismissed.Appeal from Circuit Court, Seminole County; M. B. Smith, judge.

COUNSEL

Kay Adams, Ragland & Kurz, of Jacksonville, and W. A. Pattishall of Orlando, for appellants and plaintiff in error.

W. O Anderson and G. P. Garrett, both of Orlando, for appellee and defendant in error.

OPINION

ELLIS Justice.

By agreement of the parties and consent of the court, the two above-styled cases are considered together.One is a chancery cause, and the other is a common-law action, as the titles of the two cases indicate, although the parties are different there being more persons constituting the parties in the chancery cause than constituted the parties in the common-law action.

In each case Barnett was the complaining party.He began an action at law in the circuit court for Orange county against C. M. Slaughter, and on the 6th day of June, 1932, obtained a judgment against Slaughter in the sum of $12,500.On October 1, 1932, Slaughter took a writ of error to the judgment.The writ was returnable to the Supreme Court on November 18, 1932.

The cause of action in that case was an alleged breach of a contract between Barnett and Slaughter dated April 1, 1929.The contract is not made a part of the declaration, but it appears in evidence.The declaration alleged that C. M. Slaughter entered into a contract to sell to Gordon J. Barnett, the plaintiff, an undivided five-sixths interest in a certain tract of land, comprising twenty-nine and seventy-three hundredths acres, on which was located a 'Fernery.'The lands are located in Seminole county.The consideration to be paid was alleged to be $29,000, $9,000 of which to be paid in installments of $1,000 each on 'May 1st, June 1st, July 1st, November 1st, December 1st, all A. D. 1929, and January 1st, February 1st, March 1st, April 1st, all A. D. 1930, and the remaining amount of $20,000.00 on the same corresponding dates each succeeding year until paid.'

The declaration alleged that the plaintiff'performed all the terms of said contract on his part to be performed prior to demand by him for performance and thereafter demanded performance of said contract by the defendant prior to the due date of any of said above payments'; that the defendant refused to comply with the plaintiff's demand for performance of the agreement and notified the plaintiff that he would not perform the contract.The declaration alleged that all things had happened, all times had elapsed, and all conditions had been fulfilled to entitle the plaintiff to bring his action.In that case the judgment is attacked on several grounds affecting, not only the declaration, but the validity of the contract, on which the action rested.

On the 11th day of June, 1932, five days after he obtained judgment against Slaughter, Barnett exhibited his bill in chancery against Slaughter and wife, McCall and his wife, and Associated Florists Fernery, Inc., a Florida corporation, to set aside as null and void certain conveyances of land as having been made in fraud of Barnett as a creditor of Slaughter as evidenced by the judgment which was unsatisfied and a writ of execution which had been issued thereon and returned nulla bona.

The bill sets up the contract, a copy of which is attached and made a part of the bill.The land is fully described and allegations are made as to the purchase of the land by Slaughter as contemplated by the contract, his refusal to convey to Barnett, the common-law action by the latter, conveyances of the land to Slaughter and McCall, and other conveyances among the parties named which the bill attacks as having been made to defraud Barnett and hinder and delay him in the collection of his judgment.Motions were made by McCall, Slaughter, and Associated Florists Fernery, Inc., to dismiss the bill of complaint.Those motions were overruled by the chancellor in September, 1932, and Slaughter and wife, McCall and wife, and Associated Florists Fernery, Inc., appealed.

If the judgment obtained by Barnett against Slaughter should be reversed, the equity cause must go with it, as the relief prayed for in that case rests upon the judgment obtained in the common-law action.If the judgment is invalid for any reason, either because the contract was invalid or for any error in the proceedings in which the judgment was obtained, then the complainant is not such a creditor of Slaughter as entitled him to the relief he seeks in equity, because we treat the bill, not as one to establish a resultant trust, but as a bill to set aside alleged conveyances made to hinder and delay a creditor in the collection of his judgment.

Solicitor for appellee, Barnett, states in his brief that the suit was brought pursuant to the provisions of section 5771, Comp. Gen. Laws 1927, 'the Statute of 13 Elizabeth relating to fraudulent conveyances to delay and hinder creditors.It is brought as a creditor's bill filed pursuant to authority given in C. G. L. 5035.'

As a bill of that character admitting the validity of the judgment, it is sufficient to entitle the complainant to the relief he seeks.It is also true that the bill alleges matters relating to the contract as if it were pleaded as an original obligation out of which a constructive trust arose against Slaughter, and that McCall and the Associated Florists Fernery, Inc., acquired title charged with the trust.

In view of those superfluous allegations, this court may, under the authority of Commissioners of the Taxing Dist. of Brownsville v. Loague,129 U.S. 493, 9 S.Ct. 327, 32 L.Ed. 780, consider the contract behind the judgment, and, if it was found to be invalid, order the bill to be dismissed, even if no technical error in the common-law proceedings relating to the conduct of the case only was discovered, but that point need not be discussed, as the questions in the common-law action involve both the validity of the contract and the orderly procedure in that action.So we will consider the errors alleged to exist in the common-law action only.

A demurrer was interposed to the declaration, and it was overruled.The declaration was attacked as to its sufficiency in alleging a breach of the contract sued upon, the plaintiff's right to a performance of it by the defendant, and the plaintiff's ability and readiness to perform it on his part.

The declaration is most meager in its allegations to a high degree of uncertainty.It alleged the existence of a contract on defendant's part to convey to the plaintiff an undivided interest in a certain parcel of land for a consideration of $29,000, $9,000 of which were to be paid in installments of $1,000 each, beginning on May 1, 1929.The action was brought on April 11, 1929, twenty days before the plaintiff was required under the terms of the agreement to make the first payment of $1,000.Yet the declaration alleges that the plaintiff'performed all the terms of said contract on his part to be performed prior to demand by him for performance,' and then demanded 'performance of said contract by the defendant prior to the due date of any of said above payments.'

There is no allegation that defendant was bound to accept the first payment of $1,000 before May 1st, nor that the plaintiff tendered it to the defendant, nor that he tendered the entire purchase price, nor that he was ready, willing, and able to pay the first installment of the entire purchase price.There is no allegation showing what the plaintiff had to do under the terms of the contract before he became entitled to performance of it on the defendant's part.

The general allegation that all 'things have happened, all times elapsed and all conditions have been fulfilled to entitle the plaintiff herein to bring this action,' is most indefinite.It is inexact as well, because, if the plaintiff was not entitled to a conveyance until he had made his first payment of $1,000, if then, the time in which to make such payment according to other allegations in the declaration had not elapsed, nor had all things happened, nor had all conditions been performed, if the contract as alleged is to be construed as containing dependent agreements.If it is then it is clear that no cause of action was stated by the declaration unless the statement of the defendant that he would not perform the contract amounted to a breach of it by him and gave the plaintiff a cause of action.

It is an elemental principle of pleading that a declaration should allege distinctly every fact essential to the right of action.SeeMilligan v. Keyser,52 Fla. 331, 42 So. 367;Royal Phosphate Co. v. Van Ness,53 Fla. 135, 43 So. 916;Kirton v. Atlantic Coast Line R. Co.,57 Fla. 79, 49 So. 1024;Capital City Bank v. Hilson,59 Fla. 215, 51 So. 853;Sylvester v. Lichtenstein,61 Fla. 441, 55 So. 282.

The defendant must be apprised with sufficient definiteness of his alleged liability to enable him to prepare a defense.Kirton v. Atlantic Coast Line R. Co., supra.

As said by this court, speaking through Mr. Justice Shackleford, in Seaboard Air Line Ry. v. Rentz & Little,60 Fla. 429, 54 So. 13, 16:

'It may be well for us, members of the bench and bar alike, to bear in mind, as was cogently said by Dr. Samuel

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