Yates v. Ball

• Court: United States State Supreme Court of Florida
• Writing for the Court: TERRELL, Justice. PER CURIAM.
• Citation: 181 So. 341,132 Fla. 132
• Parties: YATES v. BALL.
• Decision Date: 13 October 1937

181 So. 341

132 Fla. 132

YATES
v.
BALL.

Florida Supreme Court

October 13, 1937

On Rehearing June 3, 1938.

Error to Circuit Court, Duval County; A. D. McNeill, Judge.

Action by James A. Yates against Edward Ball. To review a judgment for defendant, plaintiff brings error.

Reversed.

ELLIS, C.J., and BUFORD, J., dissenting.

COUNSEL [181 So. 342]

[132 Fla. 134] Robert H. Anderson and Harry T. Gray, both of Jacksonville, for plaintiff in error.

George M. Powell, Henry P. Adair, John M. McNatt, and Knight, Adair, Cooper & Osborne, all of Jacksonville, for defendant in error.

OPINION

TERRELL, Justice.

The declaration in this cause is predicated on an oral agreement to pay certain second mortgage bonds secured by a trust deed and falling due approximately four years from date of the agreement. Yates, the plaintiff in error, was the holder by assignment of said bonds, and, after much pleading not essential to detail, the case went to trial on the issue made by the following pleas to the declaration; (a) Did not promise as alleged; (b) denial that the plaintiff was under his assignment the lawful holder of the bonds; and (c) the agreement was void under the statute of frauds because it was for longer duration than one year, and no note or memorandum of it was in writing signed by the party to be charged.

At the conclusion of plaintiff's testimony, motion for an instructed verdict on the part of the defendant was granted. Motion for new trial was denied, final judgment was entered, and writ of error was prosecuted to this court.

The motion for directed verdict was grounded on the insufficiency of the evidence to support the agreement sued on, variation between the agreement and the evidence offered to support it, the agreement sued on was in violation [132 Fla. 135] of the statute of frauds, section 3872, Revised General Statutes of 1920, section 5779, Compiled General Laws of 1927, for the reasons stated in plea (c) above, and that the agreement was abandoned before the minds of the parties met.

The court below did not indicate on which of these grounds the motion for directed verdict was granted, but the questions we are called on to answer are substantially the same as the grounds for the motion, so we will discuss first the question of whether or not there was a fatal variation between the agreement sued on and the evidence offered in support of it.

The agreement sued on was oral, but is alleged in the declaration to have been in the following words:

'The bondholders promised that they would refrain from taking any steps to terminate the aforesaid extension agreement until defendant could form a new corporation to acquire title to said lands and that they would likewise refrain from precipitating the maturity of the second mortgage bonds and would take no steps to cause the [181 So. 343] second trust deed to be foreclosed and would, upon the formation of said new corporation by defendant accept a delayed payment equal to the semi-annual interest then due and owing on their bonds and would thereafter cooperate with defendant by permitting an attorney of his selection to represent their (second mortgage) trustee in a suit which defendant proposed to have brought for the alleged purpose of clearing the title to said property by eliminating certain interests that were subordinate to said second mortgage; and in consideration of the foregoing undertakings and assurances given by the bondholders and in return therefor defendant, through his said representative agreed that he would cause said new corporation to be promptly formed and adequately capitalized so that it would be able to pay for said property and [132 Fla. 136] protect the lien of the mortgage securing the second issue of bonds, and that said corporation would acquire the legal title to said 'Atlantic Beach Tract' and pay the interest then overdue on said second mortgage bonds and the interest then due on the first mortgage bonds and that defendant or his said corporation would thereafter at all times meet the payments of principal and interest to become due on said second issue of bonds and would give protection to said bonds against the first mortgage bonds, so that the second issue of bonds would be made good in all respects and so that the holders of the second issue need have no further concern about the ultimate payment of their bonds.'

Summarized, the plaintiff, Yates, agreed; (1) To refrain from taking any steps to terminate the extension agreement until defendant could form a new corporation to acquire title to the lands described in the trust deed as the 'Atlantic Beach Tract'; (2) to refrain from precipitating the maturity of the second mortgage bonds or from foreclosing the trust deed; (3) accept delayed payment of interest due when the new corporation was formed; and (4) to co-operate with an attorney of defendant's selection to prosecute a foreclosure suit to clear the title of 'Atlantic Beach Tract' of all incumbrances subordinate to the second mortgage. In consideration of these assurances on the part of plaintiff, defendant Ball agreed; (1) That he would have the new corporation promptly created and amply capitalized to pay for the 'Atlantic Beach Tract,' protect the lien of Yates' mortgage securing the second...