Steen v. Scott
| Decision Date | 05 November 1940 |
| Citation | 198 So. 489,144 Fla. 702 |
| Parties | STEEN v. SCOTT et al. |
| Court | Florida Supreme Court |
Rehearing Denied Nov. 25, 1940.
Suit for an injunction by B. L. Steen against Edna Pope Scott and Ira H. Scott, her husband. From a decree of dismissal plaintiff appeals.
Reversed for further proceedings. Appeal from Circuit Court, Osceola County; Frank A. Smith, judge.
Lawrence Rogers, of Kissimmee, and G. P. Garrett, of Orlando, for appellant.
Murray W. Overstreet, of Kissimmee, and O. Preston Johnson, of St Cloud, for appellees.
On February 22, 1938, Edna Pope Scott, a married woman, the owner of certain designated business property situated in the town of St. Cloud, Florida, joined by her husband, Ira H Scott, executed and delivered to A. B. McLean a lease thereon for a period of five years, yielding and paying to the owner the sum of $40 each month for two years and $50 each month for the remaining three years. The total amount stipulated to be paid as rental for the property for the five-year period was the sum of $2,760.
The lease contained a provision that the demised property could not be subleased in part or the lease assigned by A. B. McLean without the written consent of the owner lessors. It further provided that on the default of A. B McLean to pay said monthly rents the lease would be broken and the owner granted the right to re-enter and retake the possession of the demised premises. The right and privilege of the owner to vacate and declare void the said lease was not reserved in the event of a sale of the demised property during the five-year period and a clause to that effect was not made a provision of the lease. The execution of the lease was acknowledged by the lessors and lessee before a Notary Public and signed and delivered in the presence of two witnesses. The certificate of the Notary taking the acknowledgment of the parties to the execution of the lease failed to conform to Sections 5660 and 5676, C.G.L., in that a separate examination of Edna Pope Scott, a married woman, was not made, or if made, a certificate to this effect was not attached to the lease, it is asserted.
A. B. McLean, the lessee, went into the possession of the demised premises under the said lease and paid the stipulated monthly rentals until around March, 1939. He maintained a hardware store in the demised premises and in so doing incurred heavy obligations which deterred him in the payment of rent for March, 1939. This indebtedness was due in part to the manufacturers and wholesale dealers in hardware for hardware sold to him, and we infer from the record, on open account. He mortgaged his stock of hardware to B. L. Steen and was financially unable to pay the mortgage debt or the open accounts.
B. L. Steen filed suit to foreclose his mortgage and obligated himself to pay to Edna Pope Scott the rents due for March and April, 1939, on the demised premises under the terms of the lease. He likewise induced Ira H. Scott and wife, Edna Pope Scott, on April 17, 1939, to send to A. B. McLean the following:
_________________________________ '(Signed) I. H. Scott
_________________________________ 'Edna Scott.'
The Court appointed W. B. Strickland receiver in the foreclosure suit and he immediately entered upon his duties. B. L. Steen expressed the view that it would be necessary for him to bid in the stock of hardware at the foreclosure sale and negotiated with W. B. Strickland about the purchase of the same after he (B. L. Steen) became the owner. The receiver paid the monthly rents for the months of April, May and June, 1939. The foreclosure was being contested by A. B. McLean when B. L. Steen concluded that it was to his financial interest to pay A. B. McLean the sum of $500 for all his right, title and interest in the stock and business and let a final decree be entered and a bill of sale obtained at a Special Master's Sale to the stock of hardware. This agreement was carried out and Steen obtained a bill of sale to the hardware stock on August 7, 1939. He settled with the general creditors of the business for the sum of approximately 25% of the indebtedness. He failed to consummate the sale with W. B. Strickland as contemplated, but arranged with his son to join him and continue in the hardware business and to use the building described in the Scott-McLean lease.
Prior to the purchase of the stock, Steen talked with Ira. H. Scott during the month of April, 1939, about a renewal of the Steen lease and this was agreed upon by the parties. Pursuant to this agreement and a few days prior to the purchase at the Special Master's Sale B. L. Steen wrote Ira H. Scott, viz.:
'St. Cloud, Fla., July 26th, 1939.
'Dr. Ira L. Scott,
'Kent, Ohio.
'Dear Dr.
'I have just returned from Orlando, and learned that you are supposed to be in Ohio, I did not know that you had returned. We are trying to get the store matter settled up, and was in Tampa yesterday on that business. It looks like we might be ready within the next ten days of having an order from the Court, ordering a sale. And it now seems that I will be the one to go back in the business. In fact if there is no unforseen change comes up, that will be the case. And in that case, Robert Lee, my son will come back and join me. He is in Helena, Arkansas, Distributor for the Gulf Oil Co., but has never liked his location, which is off the main highway arteries of travel, hence looks like it had no special future and as he has always hoped to get back to Fla. in some way, ask suggested to me that since things have turned as they have as to the hardware, that I take it back and he and I operate it. However, no matter who is to run it or bid it in, that person will want to know that they have a building. Be that person me or some one else. Now as I understand, there is one month on which there has been no rent paid, the month of March, which I told you I would see that you were protected on, and there will soon be the month of August. So I am asking you, in order that we may be ready for a sale, to make out a lease to me on the same terms and conditions of the McLean lease, for the unexpired term of said lease, and send either to me direct, or to the bank if you prefer, and upon receipt of same I will send you a check for the March and August rent if that is the unpaid amounts. Make the lease transferable, in case of death or for any other reason that I would not be the one to conduct the store, but as stated, there is no doubt that my present program as stated will be carried out. And the conditions are such that I am sure to be the one that will bid it in, even tho it is a court sale, but the method we are working on now, is that McLean steps out of the picture, and I go no further with my foreclosure, which is now in process. I will appreciate getting this without delay in order that the question of building might not hinder the opening of the store as soon as other matters are settled. As per our verbal agreement some time ago, I would like just such provisions in the lease that was in the McLean lease, that protects both the lessee and lessor. Pretty hot here today, but still sufficient rain.
_________________________________ 'Resp't.
_________________________________ '(Signed) B. L. Steen.'
The letter was received on July 31, 1939, by Ira H. Scott at Orlando, as he returned there from Ohio and the letter followed him.
On August 7, 1939, Steen bought the stock of hardware at the Special Master's Sale, and on August 9, 1939, A. B. McLean assigned the Scott lease to B. L. Steen. On August 8, 1939 Steen paid to Scott rents under the McLean lease for the months of March, July and August, 1939, and the receipt given by I. H. Scott therefor is, viz.:
'Rec'd of B. L. Steen one Hundred and twenty dollars, being rent in full to date for the months of March, July and August 1939 on the A. B. McLean lease at 918 New York Ave., St. Cloud, Fla.
'I. H. Scott.'
I. H. Scott, husband of Edna Pope Scott, after the oral agreement with Steen made in April, 1939, about a continuance or renewal of the lease on the buildings and pursuant to which Steen wrote him on July 26, 1939, prior to the purchase of the stock at the Special Master's sale or the payment of money to the general creditors on the part of Steen, contacted W. B. Strickland on August 1, 1939, about the sale to him of the buildings and the negotiations reached their culmination in an agreement to sell dated August 7, 1939. On August 11, 1939, contract of sale was signed by I. H. Scott and wife, Edna Pope Scott, to W. B. Strickland. The agreed purchase price was $7,000, with a cash payment in the approximate sum of $500.
B. L. Steen took possession of the stock, paid the general creditors and continued to operate the business in the buildings described in the lease and owned by Edna Pope Scott. On August 14, 1939, W. B. Strickland and wife, Grace Y. Strickland, wrote B. L. Steen, viz.:
'Re: Lots One, Two and Three of Block 130, City.
Hardware Buildings.
'Dear Mr. Steen:
'As you know we have purchased the above property known as the Steen...
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