Fancher v. Rumsey

This case is before us on writ of error to a judgment in favor of defendants on demurrer sustained to amended declaration.

The controlling question before us for determination is whether or not the declaration sets up a sufficient state of facts to show that the several defendants were joint adventurers in the purchase for resale of a certain lot of real estate and by reason of such relation were jointly liable for the purchase price, although the same was evidenced by promissory notes executed by only one of such joint adventurers.

The facts are not before us and, therefore, we are not called upon to determine whether or not the status of joint adventurers has been established, but only whether or not such status has been sufficiently alleged.

The declaration is of considerable length. The allegations of the declaration are sufficient to show that the defendants were on the 10th day of October, 1925, and thereafter, associated together in the purchase of a certain lot of lands in Martin County, Florida, known as La Serena Beach; that one Walsh entered into a contract with the owners to purchase the land and Walsh and one Cherbino furnished the binder money in the sum of $50,000.00. That the agreed price was $1,250,000.00, one-fourth of which was to be paid at closing the purchase, the $50,000.00 binder money to be a part of the first one-fourth cash payment; that Jerome Cherbino controlled the corporation under the name of Jerome Cherbino Enterprises, Inc. Jerome Cherbino communicated with the other defendants and they agreed to invest with Jerome Cherbino Enterprises, Inc., for the purchase of the particular lands the certain sums of money set opposite their respective names as follows:

Theo Bodewein ............................. $13,500 John Duttenholfer ......................... 40,000 Geo. M. Hillenbrand ....................... 10,000 Leo M. Rumsey ............................. 90,000 Ella Rumsey Cartier ....................... 50,000 George Sellers ............................ 25,000 C.R. Dashiell ............................. 25,000 Wm. M. Barnhorst .......................... 5,000 Geo. H. Feltes ............................ 10,000 B.S. Marsh, Jr. ........................... 25,000 Dr. F.B. Moorehead ........................ 35,000 Isabelle Logsdon .......................... 5,000

This money was paid over to Jerome Cherbino Enterprises, Inc., and by it to Walsh and by Walsh paid to the land owners as part payment of the purchase price. That certain agreements were executed under seal by the various investors and by Jerome Cherbino Enterprises, Inc., Jerome Cherbino Enterprises, Inc., being designated as party of the first part and the syndicate member being designated as party of the second part, in which it was agreed:

"That the party of the second part (Syndicate member) invests with the party of the first part (Jerome Cherbino Enterprises, Inc.), the sum of the given amount of money, showing the number of dollars, which sum represents an interest in the amount go stated in the agreement, in the purchase of the said St. Lucie Syndicate property, the property being fully described therein; that when said lands had been resold (such resale to be at such time as Jerome Cherbino Enterprises, Inc., deemed advisable) to refund to each of said investors in said property the amount of the original investment and in addition thereto, the sum or sums equal to a one hundred per cent. profit as regards the original investment in the following manner:

"A minimum of 50% of the original investment out of the first quarter purchase payment;

"A minimum of 50% of the original investment out of the second quarter purchase payment;

"A minimum of 50% of the original investment out of the third quarter purchase payment;

"A minimum of 50% of the original investment out of the fourth quarter purchase payment, or such larger amounts as may be warranted by the terms of the sale when and as the cash proceeds of such sale were turned over to Jerome Cherbino Enterprises, Inc., by the purchasers of said land.

"It was further stipulated in the said investors agreement that any parcel of land which shall be acquired by the party of the first part by accretion, natural or artificial, shall become a part of the ``St. Lucie' property as if owned at the time of making this agreement."

Two copies of the agreement, it is alleged, were sent to each of the investors with directions that they respectively sign the same and return one copy to Jerome Cherbino Enterprises, Inc. It is alleged that the defendants executing the agreement were so situated at the time that it was not practical for all to sign the same agreement, so there were a number of agreements prepared in identical form and identical copies sent to each of the parties to be signed, the only difference being the name of the party of the second part and the amount of money contributed to the enterprise.

The deed from the owners to Walsh was dated October 10, 1925, but other allegations of the declaration are sufficient to show that it was not delivered until subsequent to the agreements between the contributors of the purchase price and Jerome Cherbino Enterprises, Inc.

It is alleged:

"The title was so taken in the name of D.L. Walsh, by arrangement and agreement with the various syndicate members and as represented by Jerome Cherbino Enterprises, Inc., under its terms with them.

"It was the understanding by and between the said D.L. Walsh and Jerome Cherbino Enterprises, Inc., as the representative of said joint venturers, that after Walsh had taken title in his own name he was to convey the property to Jerome Cherbino Enterprises, Inc., and that it was to hold the property on behalf of the syndicate; however, after deed was taken Walsh refused to convey to Jerome Cherbino Enterprises, Inc., more than a one-half interest in the property and thereupon an agreement in writing and under seal was entered into by and between the said D.L. Walsh and Jerome Cherbino Enterprises, Inc., representing the various joint venturers, the substance of which was that the said Walsh recognized the investment and rights of the various syndicate members in the property, and agreed that upon a sale of the property payments should be made to Walsh and Jerome Cherbino Enterprises, Inc., jointly; that thereupon such payments should be turned over to Jerome Cherbino Enterprises, Inc., to be paid out by it to the syndicate investors according to the terms of the written syndicate agreement which was copied into it, also showing the amount of money invested in the property by such, and that any balance left after satisfying them was to be divided equally between Walsh and Jerome Cherbino Enterprises, Inc.; all of which arrangement was in accordance with the terms of the said written joint venture agreement under which defendants invested their money in the said property. A copy of said agreement between D.L. Walsh and Jerome Cherbino Enterprises, Inc., is hereto attached."

It is then alleged that pursuant to this agreement recognizing the rights of the syndicate members, Walsh and his wife conveyed to Jerome Cherbino Enterprises, Inc., a one-half interest in the property by warranty deed.

It is then alleged that the money so furnished by "Said syndicate investors was turned over by each of them to, and invested with, Jerome Cherbino Enterprises, Inc., to be invested in the said land under the terms of said written agreement and was by Jerome Cherbino Enterprises, Inc., so invested; whereby, each of said syndicate members were interested in said property as investors therein as provided in said written joint venture agreement."

It is then alleged that Walsh, taking title to the property for and on behalf of joint venturers from the owners, executed certain purchase money notes, all of which were under seal, and also executed a mortgage for the deferred payments on the land, said mortgage being in proper form and under seal, to secure the payment of the various notes.

It is then averred that the owners of the property knew that Cherbino was interested in the purchase of the land but did not know of the interest of other joint venturers.

It is then averred:

"Plaintiffs further aver that all of said defendants are jointly liable for the deferred payments of the purchase price of said St. Lucie Syndicate property in and by virtue of said joint venture agreement and their investment in said property by and through the said Jerome Cherbino Enterprises, Inc., and the said D.L. Walsh.

"The entire negotiation, purchase and conveyance of said property, together with the execution of notes representing deferred payments and mortgage securing same, were conducted in Palm Beach County, Florida.

"One of the said notes so executed as aforesaid and representing a part of the unpaid purchase price for said land shows a promise to pay to the order of E.H. Bartholomew, on or before one year after date, $42,968.75 at Palm Beach Bank Trust Company, West Palm Beach, Florida, with interest thereon at the rate of 8% per annum from date until fully paid, interest payable semi-annually, and the makers and endorsers of said note further agreed to waive demand, notice of non-payment and protest and in case suit should be brought for the collection thereof, to pay reasonable attorneys' fees for making such collection, deferred interest payments to bear interest from maturity at 8% per annum, payable semi-annually. Said note was endorsed by payee, E.H. Bartholomew, and assigned and delivered to plaintiffs. A copy of said note is hereto attached."

We have carefully considered the briefs of the parties and the case has been thoroughly briefed by counsel for all interested parties.

It appears to us that the controlling principles of law applicable to this case are definitely settled in this jurisdiction by the opinion and judgment in the case of Drew v. Hobbs, et al., 104 Fla. 427, 140 So. 211.

Under the allegations of the declaration, it is clear that the title to this land was taken in trust for Walsh, Cherbino and each of the other persons hereinbefore named who contributed money to the purchase price. There was no loan involved. Each of these so-called investors handed over to Jerome Cherbino Enterprises, Inc., as a mere conduit a certain amount of money to be invested in this particular land for the purpose of speculation by resale and by this transaction, if it was as alleged in the declaration, each became the owner of that proportion of the equitable title which his contribution bore to the entire purchase price.

It is not necessary for us to quote what was said in Drew v. Hobbs, et al., supra; nor to recite the authorities therein referred to. It is sufficient to say that on authority of the opinion and judgment in that case the judgment in this case should be reversed.

It is so ordered.

Reversed.

ELLIS, P.J., and TERRELL, and BUFORD, J.J., concur.

WHITFIELD, C.J., and DAVIS, J., concur in the opinion and judgment.

BROWN, J., dissents.

ON PETITION FOR REHEARING. By a PER CURIAM opinion filed in this cause on January 29, 1935, the judgment herein was reversed, but jurisdiction has been retained over the final disposition of this case through petitions for rehearing that were filed herein within the time allowed therefor and continued until disposed of by this Court.

It is contended by the petitioners for rehearing that there was a fundamental departure in the pleadings which this Court overlooked, and that such departure requires affirmance of the judgment under the rulings heretofore laid down by Falk v. Salario, 108 Fla. 135, 146 Sou. Rep. 193, and Livingston v. Malever, 103 Fla. 200, 137 Sou. Rep. 113, and that accordingly the judgment of the Court should have been affirmed instead of being reversed.

The alleged departure complained of was not specifically ruled on nor discussed in this Court's opinion filed in this case on January 28, 1935, although the point was necessarily negatived by implication in the Court's conclusion reached and expressed at that time.

Upon further consideration of the petitions for rehearing filed herein, a majority of the Court are of the opinion that a rehearing should be granted but expressly limited in scope to the single proposition: Should demurrers have been sustained to plaintiffs' last amended declaration on the theory that the plaintiffs' last amended declaration constituted a departure in the pleadings because it amounted to a substantial change in plaintiffs' theory of their case from a suit on the instruments relied on to establish defendants' joint liability to a suit on the purchase money indebtedness as evidenced by such instruments? And that such rehearing should be granted with directions to the parties to so recast their briefs on file herein as to limit the arguments made therein to the single point hereinbefore adverted to, with leave to present oral argument thereon before this Court en banc if so desired and indicated by formal request therefor.

Rehearing granted with direction to recast briefs within thirty days as to petitioners in rehearing — thirty days thereafter for plaintiffs in error to reply.

WHITFIELD, C.J., and ELLIS, TERRELL, BROWN, BUFORD, and DAVIS, J.J., concur.

ON REHEARING