Wicker v. Board of Public Instruction of Dade County

• Citation: 106 So.2d 550
• Parties: Cyrus French WICKER, Appellant, v. The BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY, Florida, a body corporate andpolitic under the laws of the State of Florida, Appellee.
• Decision Date: 08 January 1958
• Court: United States State Supreme Court of Florida

Page 550

106 So.2d 550

Cyrus French WICKER, Appellant, v. The BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY, Florida, a body corporate andpolitic under the laws of the State of Florida, Appellee.

Supreme Court of Florida.

Jan. 8, 1958.

On Rehearing Nov. 12, 1958.

Rehearing Denied Dec. 8, 1958.

Julian R. Benjamin, Miami, and Irving Peskoe, Homestead, for appellant.

Boardman, Bolles, Davant & Lloyd, Miami, for appellee.

THOMAS, Justice.

This litigation had its origin in two actions, one in the circuit court and one in the federal district court, instituted by the appellant to recover money from the appellee. After the appellee's motion, in the state court, to dismiss had been denied and it had answered in compliance with the court's order, the parties entered into negotiations for settlement of the controversy. Eventually it was agreed that the appellee would give to the appellant a quitclaim deed to certain land involved and disclaim any interest in the land in exchange for a dismissal, with prejudice, of appellant's actions, at appellant's cost.

Pursuant to a resolution unanimously adopted by the appellee-board 18 January 1956 the disclaimer was executed 12 days later and it was recorded the sixth of the following month. The action in the circuit court was dismissed 7 February 1956, and the one in the federal court February thirteenth. In each order of dismissal the compromise agreement was identified. On February twentieth appellant contracted to sell the land in question to Jack Fleischer, and later Jack Fleischer agreed to sell it to Don R. Solomon. In accordance with the terms of the compromise appellee executed the quitclaim deed March 22 and it was delivered to appellant's attorney, Irving Kalback.

Then, 27 March 1956, the appellee brought the present suit against appellant and against Irving Kalback, custodian of the quitclaim deed, seeking a decree rescinding and cancelling the disclaimer, enjoining the transfer of the quitclaim deed, requiring surrender of this deed to appellee, and holding 'for naught' the interest of the appellant or anyone claiming under him.

We continue our digest of the complaint to ascertain the allegations upon which the prayer for relief was based. It was averred that the disclaimer was executed because of a mistake of fact and that prior to the date of execution, the appellee had been owner of the fee simple title to the property described in the disclaimer and quitclaim deed. This was followed by an allegation that the appellee had paid.$19,000 for the property. There appeared the remarkable statements that the mistake of fact consisted of failure of the appellee to know that it owned the property in fee simple and that had the appellee 'been aware of the fact * * * it would not have executed the Disclaimer'; also that the instrument was 'executed in error and through oversight and inadvertence.'

It was charged that the appellee had not received any sum of money 'whatsoever' as consideration for the disclaimer and deed.

The chancellor granted the relief in a summary decree.

Two questions of law stand out in bold relief against a background of fact which is not in serious dispute: Was there a mistake of fact justifying relief in equity and was there want of consideration for the instruments? Allied with these is the matter of appellee's failure to offer to put the appellant in statu quo.

The allegations of the complaint may be fairly interpreted as presenting the position that the appellee after its experience with the two actions involving the very land described in the deed and disclaimer and after participating in negotiations to settle the suits during which abundant opportunity was present to get all relevant information it did not already have, decided it had made a bad bargain. But the appellant was not responsible for this fault. In this record there is not an inkling that the appellant withheld from the appellee any knowledge, or possessed any, that was not available to the appellee. And certainly appellee's assertion that it did not know it held its own land in fee simple is no basis for the relief. No one was better positioned than appellee to know what it owned.

It should be recorded here that when the matter of compromise came before the appellee-board 18 January 1956 and the board's attorney reported the conditions of the proposed settlement, one of the members of the board requested a summary of the transaction so she could vote more intelligently on the question, and that in deference to her, action was delayed until the end of the meeting to give the legal department time to prepare this summary for the board's information. Later in the minutes appeared the notation that the board had 'received from the Legal Department a resume of the case of Cyrus French Wicker vs. Board of Public Instruction,' after which, upon recommendation of the Superintendent and the Legal Department, the compromise was approved without a dissent.

The appellee frankly pleaded that the instruments were the result of its own 'oversight' and of 'inadvertence,' but the oversight and inadvertence, or, more accurately, carelessness, are not chargeable to the appellant. By the examination of the public records, or its own records, the appellee could have avoided the dilemma in which it seems to have landed through its own inattention.

We think our decision in Willis v. Hillsborough County, 117 Fla. 1, 157 So. 29, is ample authority for reversal of the decree. Actually the present case is a stronger one for support of appellant's position because the parties were brought into contact as adversaries in two actions. Surely, in their effort to effect a compromise they were dealing at arm's length. During the negotiations towards a settlement, parties on both sides were put on guard. Nothing prevented the appellee from fully informing itself so its best judgment could be used to put an end to troublesome litigation.

It cannot now put the blame on someone who may have got the better of the bargain.

As for the consideration, there was a benefit to appellee from the settlement and appellee must have thought so. It was relieved of defending in the law suits without any responsibility for costs.

Even had a situation of unilateral mistake been shown, warranting the relief the appellee asked, it would have been necessary to restore the appellant to his former status, yet this prerequisite was ignored in the complaint.

It has been intimated that the appellee should be granted relief because of the financial loss it sustained, but we think that the appellee despite its responsibilities as a board directly charged with proper administration of public schools, a function as important as exists under our government, is nevertheless bound in litigation like this, by the same rules that apply to individuals. Willis v. Hillsborough County, supra.

Reversed with directions to dismiss the bill.

Reversed.

TERRELL, C. J., ROBERTS and DREW, JJ., and HARRIS, Circuit Judge, concur.

On Rehearing Granted

ROBERTS, Justice.

We have reconsidered this cause after oral argument on rehearing granted and have concluded that we should recede from our former opinion for the reasons stated hereafter.

The basic facts of the controversy are set forth in the opinion by Mr. Justice THOMAS and will not be repeated here. So that our decision on rehearing granted may be viewed in sharper perspective, however, the following chronological history of events culminating in the instant litigation is recounted:

On September 28, 1926, the Board of Public Instruction of Dade County entered into a contract of purchase and sale with Whitphel Properties, Inc., in which the Board agreed to buy the subject property for a purchase price of $120,000.00 and, pursuant thereto, executed seven promissory notes evidencing its indebtedness. On May 9, 1928-the land 'boom' in Florida having collapsed-the Board adopted a so-called 'compromise resolution' rescinding their 1926 agreement and offering to purchase the property for $40,000.00. In litigation instituted in the Circuit Court of Dade County by Grace Whiting Wicker and her husband, Cyrus French Wicker, against the Board in 1943 and finally concluded in 1947, it was adjudicated that any rights or claims of the Wickers against the Board arising out of the September 1926 contract were barred by the applicable statute of limitations. See Wicker v. Board of Public Instruction of Dade County, 1945, 156 Fla. 7, 22 So.2d 255; 1947, 159 Fla. 430, 31 So.2d 635.

The decision of this court in 31 So.2d 635 was entered on August 1, 1947. On November 10, 1947, Cyrus French Wicker filed suit as executor of the estate of his deceased wife, Grace Whiting Wicker, in the Federal District Court-this time to recover the purchase price of $40,000.00 under the 'compromise resolution' of May 9, 1928. The District Court sustained the Board's defenses of invalidity of the compromise resolution and the statute of limitations. Its judgment dismissing the suit was affirmed on appeal. Wicker v. Board of Public Instruction of Dade County, 5 Cir., 1950, 182 F.2d 764, 765. In its opinion, the Circuit Court of Appeals said: 'We are of the further opinion that when this suit was filed, the offer had long ago lapsed and that there was no basis in law or in equity for plaintiff's suit.' This decision was handed down on June 14, 1950.

On June 30, 1950, Mr. Wicker applied to the Probate Judge for leave to sell the subject property, and an order approving the sale was entered. On the same date, Mr. Wicker quitclaimed the subject property to J. A. Bechard and N. J. Fincke, the documentary stamps indicating a purchase price of $10,000.00. On August 4, 1950, Bechard and Fincke conveyed the property to the Board of Public Instruction of Dade County, the Board paying $19,000.00 for the property. Both of these deeds were duly recorded in the public records of Dade County.

On March 8, 1955, Mr. Wicker filed his final...