Nichols Et Vir. v. Bodenwein

We are unable to agree with the earnest contention of counsel for appellees Marsh and Dashiell that inasmuch as the contract was signed by the parties in a corporate name and the contract accepted by appellant, that she dealt with them as a defacto corporation she is estopped to deny the corporate existence. First it is against public policy of this State, as expressed in the statute, for individuals to do business as a corporation without complying with the corporation laws; the statute imposes a penalty of partnership liability upon the incorporators, directors and officers for so doing, and the contracts so entered into are not enforceable either by or against the corporation. Sumner-May Hardware Co. vs. Scally, et al. 66 Fla. 93, 62 Sou. Rep. 900. Second: There is no showing that appellant had any knowledge of the non-existence of the pretended corporation at the time she entered into the contract and paid her money or did any act which appellees acted upon that worked an estoppel against her.

It is apparent from the record that appellees, Cherbino, Dashiell, Marsh, and others, purchased the real estate described in the bill for the purpose of subdividing and reselling, and that they each contributed to the original purchase price, or the first payment upon the property; and that before any tangible effort was made to incorporate, sold practically the entire tract. They were not incorporated at the time of the sale of the same and at the time appellant paid her money; that the appellees received the profits from such joint adventure equal to one hundred per cent. of the capital invested, within less than sixty days; and that they have retained the fruits of the joint adventure and not restored, or attempted to restore, the money paid by appellant. No principle of equity is more firmly established than that "when an agent acts for his principal and the principal accepts the fruits of the agent's efforts, the principal must be deemed to have adopted the methods employed and he may not, even though innocent, receive the benefits and at the same time disclaim responsibility for the means by which they were acquired." Chase v. Sullivan, 99 Fla. 202, 126 Sou. Rep. 359; Love v. Brown Development Co., 100 Fla. 1373, 131 Sou. Rep. 144.

Appellees Cherbino, Dashiell, Marsh, and others, purchased the property in June, 1625; on the 3rd day of July, 1925, they, pretending to act as a corporation, sold four lots in question to appellant and received and retained her money. No efforts were made to incorporate until the 6th day of July, 1925, when notice of application for letters patent was given. The company was authorized to do business on the 7th day of August, 1925. In the meantime, practically the whole tract of land purchased had been resold, and on the 15th day of August the named appellees, and the others, received benefits of such joint adventure equal to one hundred per cent. of the capital invested. These moneys were acquired through the joint enterprise and not by the corporation.

It is axiomatic that since the named appellees did not speak when their interests commanded them to be silent, they cannot now be heard to speak when equity and conscience require them to be quiet.

For the reasons set forth herein, and in the original opinion filed in this case, such original opinion is adhered to.

DAVIS, C.J. AND WHITFIELD, TERRELL AND BUFORD, J.J., concur.

ON PETITION FOR FURTHER REHEARING.