Tibbetts Corner, Inc. v. Arnold

• Decision Date: 08 February 1933
• Citation: 108 Fla. 239,146 So. 218
• Parties: TIBBETTS CORNER, Inc. v. ARNOLD et al.
• Court: Florida Supreme Court

146 So. 218

108 Fla. 239

TIBBETTS CORNER, Inc. v. ARNOLD et al.

Florida Supreme Court

February 8, 1933

En Banc.

Suit by the First Savings & Trust Company of Tampa against Tibbetts Corner, Inc., Cassie Ethel Arnold, individually and as administratrix of the estate of Campbell Elmore Arnold deceased, and others, for directions as to disbursement of insurance funds. From a decree in favor of Cassie Ethel Arnold, as administratrix of the estate of Campbell Elmore Arnold, deceased, Tibbetts Corner, Inc., appeals, and the administratrix moves to dismiss the appeal.

Motion to dismiss denied, and judgment affirmed conditionally.

BROWN J., dissenting in part. Appeal from Circuit Court, Hillsborough County; L. L. Parks, judge.

COUNSEL

C Edmund Worth, E. B. Drumright, and Whitaker Brothers, all of Tampa, for appellant.

W. B Dickenson, of Tampa, for appellees.

OPINION

PER CURIAM.

Tibbetts Corner in Tampa, on which was located a two-story building the first floor being divided into stores and the second floor into offices, was devised to Campbell Elmore Arnold by Samintha Campbell 'for his use and benefit during his natural life and at his death to the heirs of his body and their heirs and assigns forever, if he should die without heirs to his body, then to my heirs forever.' In the corner of the building on the ground floor, Tibbetts Bros. operated a candy store.

In 1921 Campbell Elmore Arnold leased Tibbetts Corner to William L. Van Dyke and Marie Elliott Van Dyke for 99 years. In view of the provisions of the will, as previously quoted, the question of whether or not Campbell Elmore Arnold held a life estate or a fee in said lands was at once raised, and to settle this question there was incorporated a provision in the lease to the Van Dykes which required Arnold within a reasonable time to bring a suit in equity for the purpose of adjudicating his title. The lease further provided, for the purpose of indemnifying the Van Dykes against any loss that might be sustained by them as a result of their being dispossessed of said lands at any time within 15 years, that Arnold should take out six policies of insurance in the sum of $5,000 each in some insurance company to be approved by the lessees and assign said policies as a trust fund to First Savings & Trust Company of Tampa as trustee. It was further provided that, in the event the lessees should be dispossessed of the leased premises at any time within three years, the full amount of the insurance should be forfeited to them; that, should they be dispossessed at any time after 3 years, but within 6 years, $25,000 of the proceeds of said insurance policies should be forfeited to them; that, should they be dispossessed at any time after 6 years, but within 9 years, $20,000 of the proceeds of said insurance policies should be forfeited to them; that, should they be dispossessed at any time after 9 years, but within 12 years, $15,000 of the proceeds of said insurance policies should be forfeited to them; and that, should they be dispossessed at any time after 12 years, but prior to 15 years, $10,000 of the proceeds of said insurance policies should be forfeited to them.

Coeval with the execution of the lease, the lessees purchased the stock of goods, including retail candy store, cold drink, mercantile business and good will of E. C. and W. H. Tibbetts located and being conducted on a part of the leased premises and which they continued to operate for 3 years when they disposed of it. The lessees also incorporated Tibbetts Corner, Inc., the appellants here, to whom they assigned their 99-year lease. After Disposing of the candy store, they continued to sublease other portions of the leased premises on which they spent large sums improving and remodeling.

Campbell Elmore Arnold died in 1928 without having brought and prosecuted to final decree suit to adjudicate his title to the leased premises. After his death, other heirs of the testator brought such a suit resulting in a decree holding that Arnold held only a life estate in them. That decree was affirmed by this court in December, 1930 (Arnold v. Wells. 100 Fla. 1470, 131 So. 400), the effect of which was to abrogate the 99-year lease of Tibbetts Corner, Inc.

After the final judgment adjudicating Arnold's title, the trustee under the lease, First Savings & Trust Company of Tampa, brought suit in equity praying advice and directions as to disbursement of the insurance funds held by it. The chancellor decreed payment of the entire fund except costs and attorneys fees to Tibbetts Corner, Inc., under the terms of the lease. That decree was on appeal reversed by this court holding in effect that the terms of the contract for liquidated damages could not be enforced, but that the plaintiff must allege and prove the damages actually resulting from its breach.

On the going down of the mandate, Tibbetts Corner, Inc., petitioned for inquisition of damages and moved to amend its answer, to allege and prove actual damages. The chancellor denied both motions, and entered his final decree in favor of Arnold's administratrix awarding the entire trust fund to her. Tibbetts Corner, Inc., appealed, and the cause is again here for consideration on the motion of Arnold's administratrix to dismiss this appeal.

The motion to dismiss is first predicated on section 2920, R. G S. of 1920, section 4639, C. G. L. of 1927, the like rule having been made applicable to causes in chancery by section 3173, R. G. S. of 1920, section 4965, C. G. L. of 1927. These statutes authorize dismissal where appeal is taken for delay, against good faith, or where error does not lie; such defects being revealed by a mere casual examination of the...