Garriga v. Reid Lumber Co. , 97 Fla. 321 ( 1929 )

The appellee filed suit in the Circuit Court of Gulf County against the appellants, the purpose of which was to obtain a temporary injunction and upon final hearing a decree of perpetual injunction. The bill alleged in substance that on April 20th, 1927, complainants sold to the defendants timber of certain lands described in the bill of complaint for $72,453.75, payable $5,000.00 cash and the balance evidenced by promissory notes of the defendants payable to the order of the complainants every 60 days for $5,000.00, except the last note, which was for the sum of $2453.75, and that the defendants had six (6) years in which to cut and remove such timber. That the contract stipulated that it was agreed that a cruise of the timber had fixed the stumpage at 9,660,500 feet, according to log scale measure in the woods. That the timber had been divided by the cruisers as nearly as possible in equal proportions of five (5) tracts. That defendants were to start cutting and logging tract one (1) and should proceed to cut the timber from the five tracts in numerical order named. They should cut and log timber on each tract designated before cutting and logging timber from any other tract, except that they might suspend logging on any tract and begin on another tract by first paying for the balance of the timber on the tract upon which logging was so suspended at the rate of Seven Dollars and Fifty Cents ($7.50) per thousand feet, the cruiser's estimate, whether found to be correct or not, to be taken and accepted by both parties as basis for all such settlements.

The bill alleges the number of feet of timber on each tract as shown by the cruise and alleges that the total in feet per thousand of timber as shown by the cruise when multiplied by $7.50 fixes the purchase price as above stated.

It is alleged that the defendants suspended cutting on tract No. 1 and began cutting on tract No. 2 and suspended cutting on tract No. 2 and began cutting on tract No. 3 before having finished cutting on tract No. 1, and before having finished cutting on tract No. 2, and without having paid notes equal to the purchase price of tracts No. 1 and 2, aggregating 4,080,000 feet at $7.50 per thousand, making $30,600.00.

The bill alleges the amount of timber which had been cut from tract No. 3. The value of the timber cut, according to the allegation of the bill of complaint up to the date of the granting of the restraining order, was $36,562.50. The bill does not allege that there had been default in the payment of any note, but does allege that "prior to the entry of the defendants on tract No. 3, they had paid only three of the said notes, amounting to $15,000.00. That since cutting began on tract No. 3 the defendants have paid notes maturing on December 25th and February 25th." It will be observed that these two last mentioned notes were for $5,000.00 each. Therefore, it appears from the bill that five notes for $5,000.00 each, and $5,000.00 cash, aggregating in all $30,000.00, had been paid.

The claim for relief by injunction is based upon the allegation:

That before beginning cutting on tract No. 2 the defendants did not pay notes equal to the purchase price of tract No. 1 and, before entering on tract No. 3 the defendants did not pay notes equal to the purchase price of tract No. 2 as provided in said contract. That the said contract has been broken by the defendants in the above particulars. That the defendants began cutting on tract No. 3 on or about the 15th day of January, 1928, and defendants cut on said tract No. 3 up to March 6, 1928, 615,000 feet and since said date have been cutting on said tract at the rate of 20,000 feet a day.

Under the contract, which is made a part of the bill of complaint, the title to all of the timber passed to the defendants for which they agreed to pay a stipulated price at certain times and under certain conditions. The bill alleges a breach of the contract. There is no allegation in the bill that the defendants are insolvent.

The bill shows upon its face that the amount alleged to be due the complainants by the defendants is so fixed by the contract as to leave nothing to conjecture. To arrive at the amount due involves only a mathematical calculation.

No probability of irreparable injury is shown by the allegations of the bill.

A demurrer was interposed to the bill of complaint and should have been sustained upon the first three grounds thereof, which were as follows:

1. That complainant in and by its said bill hath not made and stated such a cause as ought in equity to entitle it to the relief therein prayed or to any relief.

2. That complainant has a good and adequate remedy at law.

3. That complainant in its said bill fails to allege that the cutting of the timber in question by the defendants make and constitute an irreparable loss, or an injury whatsoever.

See Carney et al. v. Hadley, 32 Fla. 344, 14 So. R. 4.

In Creveling v. Chambers, 73 Fla. 512, 74 So. R. 511, this Court say:

It is incumbent upon a complainant to allege in his bill every fact, clearly and definitely, that is necessary to entitle him to relief; and if he omits essential facts therefrom, or states such facts therein as show that he is not entitled to relief in a court of equity, he must suffer the consequences of his so doing. This principle applies to all bills in equity, but is especially applicable to bills seeking an injunction, the rule being that the title or interest of the complainant and the facts upon which he predicates his prayer for such relief must be stated positively, with clearness and certainty. The bill must state facts and not opinions or legal conclusions.

To the same effect was the opinion in the case of Inter-State Lumber Company v. Fife, 70 Fla. 178, 69 So. R. 715.

J. S. Betts Co. v. South Ga. Ry. Co., 69 Fla. 46, 67 So. R. 861, this Court say:

Where the legal remedies for a breach of a contract are ample, the basis for equitable relief should be otherwise shown.

On hearing a temporary restraining order was granted from which order appeal was taken and, among other things, the order overruling the demurrer to the bill of complaint was assigned as error.

For the reasons stated, the order appealed from should be reversed, and it is so ordered.

Reversed.

TERRELL, C. J., AND WHITFIELD AND STRUM, J. J., concur.

ELLIS AND BROWN, J. J., dissent.