Winton v. Stone

• Decision Date: 09 January 1933
• Citation: 145 So. 845,107 Fla. 636
• Parties: WINTON v. STONE et al.
• Court: Florida Supreme Court

145 So. 845

107 Fla. 636

WINTON v. STONE et al.

Florida Supreme Court

January 9, 1933

En Banc.

Suit by M. R. Winton against W. D. Stone and wife and another. From the decree dismissing the bill, plaintiff appeals.

Reversed with directions.

ELLIS and BROWN, JJ., dissenting. Appeal from Circuit Court, Hillsborough County; F. M. Robles, judge.

COUNSEL

Dickenson & Lake, of Tampa, for appellant.

Jackson Dupree & Cone and C. H. Martin, all of Tampa, for appellees.

OPINION

PER CURIAM.

This suit was brought by appellant as complainant in the court below to impress a resulting trust on certain lands in Hillsborough county in favor of complainant, for an accounting of rents collected on said lands and money derived from the sale of portions of it, and for a receiver to take charge of and manage said property. The bill was amended answer was filed, and on final hearing a decree was entered in favor of the defendant, and the bill as amended was dismissed.

This court is reluctant to reverse a decree of the chancellor on a question of fact. In fine we are committed to the rule that the finding of fact of the chancellor on conflicting evidence should ordinarily not be disturbed upon appeal when there is ample evidence to sustain the finding; yet such finding should not be sustained merely because there is evidence that is contradictory upon which the finding may rest. Newman v. Smith, 77 Fla. 688, 82 So. 236; Perez v. Bank of Key West, 36 Fla. 467, 18 So. 590; Peck v. Osteen, 37 Fla. 427, 20 So. 549; Alvarez v. Bowden, 39 Fla. 450, 22 So. 718; Ross & Co. v Walker, 44 Fla. 704, 32 So. 934; Howard v Sheffield, 73 Fla. 358, 74 So. 488; McGill v. Chappelle, 71 Fla. 479, 71 So. 836.

In this case, the pleadings were not clear, and a careful reading of the evidence convinces us that substantial justice was not done. The final decree is not required by the evidence considered as a whole, and, in view of the entire record, the decree is reversed, with directions to reinstate the bill and to permit amendments if desired in order that the cause may be clearly presented for determination.

BUFORD, C.J., and WHITFIELD, TERRELL, and DAVIS, JJ., concur.

ELLIS and BROWN, JJ., dissent.

DISSENTING

ELLIS J. (dissenting).

M. R. Winton sought by bill in chancery against W. D. Stone and his wife to declare a resulting trust in certain lots in Hillsborough county held in the name of Stone to be for complainant's benefit, for an accounting for rents collected by Stone on leases of the property and money derived from the sale of portions of it, and for a receiver to take charge of and manage the property and general relief.

The bill was filed July 12, 1927.

An amendment of the bill was filed a month later, in which the Exchange National Bank was made a party, and in which it was alleged that certain promissory notes executed by Winton in favor of Stone were held by the bank for collection, and to which the prayer was added that the bank be restrained from redelivering the notes to Stone and from hypothecating them in any manner.

The case made by the two bills in chancery rests upon the following state of facts as alleged in the two bills: Prior to and up to the time of the alleged business transaction between Winton and Stone out of which this litigation arose, October 17, 1925, Winton was a physician and surgeon and Stone was engaged in real estate business. The personal relations of the two men were most friendly, and they 'had had numerous business dealings together,' in view of which seemingly, the allegation is made that Winton 'had confidence in and relied upon any statement or representation made him by the said W. D. Stone with whom he had transacted business for a number of years.'

From that circumstance alone Winton can obtain little or no comfort in so far as it constitutes an element for consideration in the relief sought by Winton in the case developed by the pleadings, because, however friendly the personal relations of parties to a business transaction may be, they trade at 'arm's length' unless in the transaction itself there is created something of a fiduciary or trust relation. See Parramore v. Hampton, 55 Fla. 672, 45 So. 992; Patrick v. Kirkland, 53 Fla. 768, 43 So. 969, 125 Am. St. Rep. 1096, 12 Ann. Cas. 540.

The case of Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 54 A. L. R. 1173, is one in which Mr. Justice Terrell in an able opinion elucidates the point. The fiduciary relation or the duty which is owed to another as the basis of the trust may be raised by representations, conduct, and the like that have been relied upon by another under such circumstances as create an equitable estoppel on one to pursue thereafter an opposite course for his own advantage. See 26 R. C. L. 1235; Edwards v. Culberson, 111 N.C. 342, 16 S.E. 233, 18 L. R. A. 204.

The theory of the bills must be taken to rest upon conditions creating a trust ex maleficio. Not merely upon the fact that the complainant knew the defendant and believed him to be a man of honor.

The allegations, in substance, are: That Stone assumed to purchase for himself and Winton certain lands in Hillsborough county, which they were to hold in equal shares and each to contribute one-half the purchase price, which Stone said was $25,000. That Stone made the proposition on or about October 17, 1925. Winton accepted, and on that date gave Stone $500; on October 19th, $2500 more; on February 20, 1926, $3,000, on March 3, 1926, $500; on April 14th, $250; and on August 16th, $940--making a total of $7,690. That, in addition to these payments, Winton executed and delivered to Stone three promissory notes in equal amounts aggregating $10,000, all dated February 26, 1926, one payable one year after date, another two years after date, and the third three years after date. The notes were alleged to be in part payment of the purchase price of the land, and are the notes alleged to be held by the bank for collection for Stone. The bill alleges that $690 of the cash paid to Stone were paid 'for other matters as represented by said W. D. Stone in connection with the purchase of the property' and in addition to the amount of $14,000 that was to be paid to the owners.

It appears from these allegations that the price at which the property was to be bought was $25,000, $14,000 to be paid cash, $690 in addition, and Winton paid $7,690 and his notes for $10,000, making a total of $17,690. It is alleged that Stone acquired the property from Louis Fletcher by quitclaim deed in January, 1926, taking the title in his own name, and the deed was duly recorded. The original bill alleges that the property only cost Stone $5,250, and in the amendment it is alleged that Stone purchased it for $7,000. It is alleged that Stone's scheme was to collect the notes from Winton, reimburse himself for the $7,000 paid for the land, utilize the balance of $3,000 for his own personal use, and convey to the complainant a half interest in the land.

The original bill alleges that on June 13, 1927, Stone and wife executed a deed of conveyance in favor of Winton for an undivided half interest in a part of the property omitting from the deed lots numbered 9 and 10 of block 28 Futch's subdivision, and demanded of Winton the payment of 'the balance of one-half' of $25,000 which the property was represented by Stone to cost, and one-half of which Winton was by his agreement with Stone to pay to him. It is alleged, however, that prior to that time, June 13, 1927, Winton had discovered Stone's deceitful conduct, that the property had only cost $5,250, and that Stone intended to appropriate the remainder, amounting to $7,250, to his own use. It is alleged that Winton refused to pay the balance, and Stone declined to deliver the deed.

It is alleged that Stone has sold part of the property and has collected rents on the portions leased.

It is difficult to reconcile the allegations in the original bill and the amendment. Taken together, they are not clear in some particulars. On June 13, 1927, when Stone tendered the deed for only a part of the property Winton had about a year before paid Stone $7,690 and more than a year and three months before giving him prmissory notes aggregating $10,000, which amounted to $5,190 more than one-half the cost of the property as repreented by Stone; that much more than Winton under his version of the transaction was required to pay. Stone acquired the property from Fletcher in January, 1926. The deed was recorded during the same month. The consideration expressed was $10 and other valuable considerations; yet after that date Winton paid Stone $4,690 and executed his notes for $10,000 which aggregated $2,190 more than one-half of the $25,000 supposed to have been paid for the land.

If Winton and Stone had agreed to buy the land together, as Winton alleged, at the price and on the terms alleged, it is by no means clear why he should have paid to Stone in cash $7,690 and bound himself by notes to pay $10,000 more. When he gave the notes, he had already paid $6,000 in checks which made $3,500 more than his half of the purchase price of the land, and then afterwards paid in cash $1,690 more. These payments were in excess of what he had assumed to pay according to the alleged understanding between him and Stone, and considering the due dates of the notes extended over a period of three years and several months. When Stone tendered the deed for a half interest,...