United Homes, Inc. v. Moss, 3452
| Decision Date | 14 June 1963 |
| Docket Number | No. 3452,3452 |
| Citation | 154 So.2d 351 |
| Parties | UNITED HOMES, INC., a Florida corporation, Appellant, v. Martin I. MOSS and Harry Abel, Appellees. |
| Court | Florida District Court of Appeals |
Ezra J. Regen and Gale K. Greene, Sarasota, for appellant.
I. R. Ludacer, of Harkavy, Doyle, Feigin, Hasson & Ludacer, and Henry P. Trawick, Jr., of Kirt, Pinkerton, Sparrow & Trawick, Sarasota, for appellees.
The appellant corporation, as plaintiff below, filed its amended complaint in chancery, setting out two counts. Count I was directed against both defendants, Martin I. Moss and Harry Abel, the appellees here. Count II, relating to the same transactions and events, was directed only against the defendant Moss. The lower court dismissed with prejudice Count I as it related to the defendant Abel, finding that this count did not allege facts setting up a legal duty running from the defendant Abel to the plaintiff corporation and did not allege any facts establishing a right on the part of the plaintiff corporation to rely on the alleged representations made by the defendant Abel. It is from this order as it concerns Count I that the plaintiff corporation appeals. The court allowed the plaintiff to amend as to the defendant Moss; therefore, this appeal does not involve that portion of the order.
Taking as true the allegations contained in Count I of the plaintiff's amended complaint, we summarize the 'facts' as follows: The plaintiff corporation was organized for the purpose of buying, developing and selling real estate in Florida. Moss was one of the original incorporators of the plaintiff corporation; he also serves as an officer and director of the corporation. Abel, a licensed real estate broker, was personally acquainted with all of the incorporators of the corporation, and it was upon his advice and suggestion that the corporation was organized. The activities of the corporation were centered in and about Sarasota County. The only one of the officers and directors of the corporation who resides in the Sarasota County area is Moss, and for this reason the non-resident officers and directors reposed their faith and confidence in Moss to act at all times in the best interests of the corporation, to make full disclosure of all facts pertaining to any transaction involving the corporation, and to refrain from realizing any personal gain or profit at the expense and disadvantage of the corporation. Moss had sole and exclusive custody and control of all corporate records and was intimately familiar with the corporation's business affairs.
Moss and Abel jointly conspired and agreed to defraud the corporation. More particularly, the defendants agreed that each of them would recommend to the corporation the purchase of a certain parcel of real property in Sarasota County, which property was owned by a resident of Canada who was asking $70,000 for it. The defendants agreed to represent to the corporation that the property was owned by a New York couple and that the purchase price was $100,000. The defendants further conspired and agreed that, once they gained the corporation's approval to purchase the property, they would use corporate funds to acquire the property for $70,000 and realize a secret profit upon reconveying to the corporation for $100,000.
In furtherance of this conspiracy, Moss and Abel each made repeated representations to the non-resident officers and directors that the property was owned by a New York couple who were anxious to sell for a price of $100,000, of which $42,000 would be paid in cash and the balance by the corporation's execution of a note and purchase money mortgage. Moss and Abel represented to the corporation that they were experienced in real estate values in and about Sarasota County, that the $100,000 sale price was fair and reasonable, and that the property could be held for investment or for development. The defendants repeatedly urged the non-resident officers and directors of the corporation to approve the purchase of the property and to authorize the defendants to negotiate the purchase and handle all details concerning the acquisition of the property. Moss and Abel both knew that the property was in fact owned by a resident of Canada and that the actual sale price of the property was $70,000, but they deliberately concealed these facts from the corporation with the intention of deceiving and defrauding said corporation.
Moss entered into a written contract with the real owner of the property, pursuant to which contract Moss agreed to purchase the property in his own name for $70,000, of which amount $12,000 was to be paid in cash and the balance of $58,000 by Moss executing a note and purchase money mortgage. Moss advanced to the seller the sum of $2,000 as a deposit on the said contract.
In furtherance of the conspiracy, Abel went to...
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