Davis, Et Vir v. Battle

182 So. 243, 132 Fla. 240

• Court: Supreme Court of Florida
• Decided: March 4, 1938
• Status: Published

Opinions

Chapman, J.

On June 13, 1937, plaintiffs below filed in the Circuit Court of Dade County, Florida, a suit in equity against Mary I, Davis, a married woman, to subject her separate property to an equitable lien for the sum of $1137.50 growing out of the following instrument:

“Miami Beach Realty Board Standard Form a Deposit Receipt

“Miami Beach, Florida, February 28, 1936-

“Receipt is -hereby acknowledged of the sum of Five Thousand Six Hundred ................Dollars ($5,600.00) from J. Paul Baker, Jr.

“The above cashier’s check for $4,600.00 to be held in the escrow department of the National Title Company pend» ing final closing of this sale, as a deposit on account of the purchase price of the following described property upon the terms and conditions as stated herein.

“Description of property: Lots 3-, 4, 5 and 6, of Block 27, Ocean Front Property of the Miami Beach Improvement Company, located at the Southwest corner of 36th Street and Collins Avenue, Miami Beach, Dade County, Florida. Also the fee simple title to- a strip of land 16 feet wide and 100 feet long, bounded on the West by Lots 5 and 6 aforesaid, and on the East by Lots 3 and 4 aforesaid, said strip at one time having been an alley for the benefit of said property and said strip having heretofore been vacated by the City of Miami Beach, together with all riparian rights appurtenant to all aforesaid property.

“The full purchase price is $56,062.50; $26,062.50 cash of which the above $5,600, is part, to be paid by the purchaser on the closing of this transaction. The balance of $30,000 to be paid by purchaser giving a mortgage in the amount of $30,000 payable $10,000 in 1 year, $10,000 in 2 years and $10,000 in 3 years from date of closing of this transaction. Interest of 8% on mortgage, payable semiannually. The entire mortgage can be paid off on any interest date except the first interest date which will be six months from the date of the above described mortgage.

“Property to be conveyed free and clear of all liens and incumbrances. Taxes to be pro-rated as of closing date.

“It is understood and agreed that this property is being sold and purchased subject to the restrictions and limitations of record common to the; neighborhood, and subject to any easements for public utilities, which may be of record, or may become liens through pending legislation before consummation of contract.

“It is agreed that this transaction shall be closed and the purchaser shall pay the balance of the first payment and execute all paper necessary to be executed by him for the completion of his purchase within 30 days from delivery or tender to him of a complete abstract of the said property; otherwise the sum this day paid shall be retained by the seller as liquidated damages, and the parties hereto shall be relieved from all obligations under this instrument.

“The seller is to furnish a complete abstract showing his title to be good and marketable, but in the event that the title shall not be found good and marketable, the seller agrees to use reasonable diligence to make the said title' good and marketable, and shall have a reasonable time so to do, and if after reasonable diligence on his. part said title shall not be made good and marketable within a reasonable 'time, the seller shall return the money this day paid and all moneys that may have been paid ■ under this contract, and thereupon he shall be released from all obligations hereunder. Or, upon request of the purchaser, he shall deliver the title in its existing condition. .

“This contract shall be binding upon both parties when approved by the owner of the property above described.

“Battle & Hicks, Broker

“By Wm. A. Rhodes

“I, or we, agree to purchase the above described property on the terms and conditions stated in the foregoing instrument.

“Witness:

“Wm. A. Rhodes “J. Paul Baker, Jr. (Seal)

“R. T. Hicks -or his assignee

“I, or we, agree to sell the above mentioned property to the above named purchaser on the terms and conditions stated in the above instrument.

‘Witness:

“Catchings Therrel “Mary I. Davis (Seal)

“Wm. A. Rhodes

“I, or we, agree to pay to the above signed broker, as commission for finding a purchaser for the above property, the sum of Eleven Hundred Thirty-seven____50/100 Dollars ($1137.50) or one-half of the deposit, in case same is forfeited by purchaser, provided the same shall not exceed the full amount of the commission.

“Catchings Therrell

“Wm. A. Rhodes “Mary I. Davis (Seal)'

“George W. Davis (Seal)”

The sum of $1137.50 is a commission for finding a purchaser able and willing to buy the property, and after appellees had performed each and every requirement of the instrument, the defendant below directed that a deposit of $5600.00 be returned to the purchaser and she, in turn, listed her property with other real estate brokers of Miami Beach at the sum of $65,000.00, it being asserted that the finding of a purchaser for the property was an agreement inuring to the benefit of the separate property of Mrs. Mary I. Davis.

A motion to dismiss the bill of complaint on a number of grounds was by the Court overruled. On September 7, 1936, an answer was filed by Mary I. Davis and her husband, George W. Davis, denying the material allegations of the bill of complaint, the principle defense being that no money or other thing of benefit to the separate property of Mary I. Davis was received through the activities of the plaintiffs and that no increase, of benefit-to her separate property accrued, and she denied that the value thereof was enhanced, increased or was benefited by the instrument, supra, of the parties.

Considerable evidence was taken before a Special Master authorized to make findings as to facts and law, and after hearing all the testimony, the equities of the cause, he so reported, to be with plaintiffs and recommended a decree subjecting the separate property of Mary I. Davis to the payment of the real estate broker’s commission in the sum of $1137.50; that plaintiffs had an equitable lien on the property and the same should be sold to pay the same. On final hearing the equities were held to be with the plaintiffs, when an appeal was taken and the cause is here for review on a number of assignments of error.

It is asserted that the plaintiffs found a purchaser for the property, ready, willing and able to pay for it; that the plaintiffs’ part of the contract was executed and they were as a matter of law entitled to their commission in the sum of $1137.50; that title to the property was in Mary I. Davis and she declined to close the trade but directed the “binder” returned to the purchaser and another listing was made at an advance in price of about $9,000.00. The plaintiffs contend the contract of sale inured to the benefit of Mrs. Mary I. Davis, enhanced its value, and increased its benefits, all of which was denied by the defendants below. The written agreement was to find a purchaser for the property, ready, willing and able and the terms'of the employment was not to sell the property. In the case of Hutchins & Co. v. Sherman, 82 Fla. 167, 89 Sou. Rep.. 430, this Court said:

“The authorities uniformly hold to the effect that where a broker procures a customer willing, ready and able to purchase property offered for sale according to the terms of the offer and the transaction is defeated on account of some fault of the principal, the broker is entitled to his commission although the transaction is not consummated. 9 C. J. 623; Camp Lbr. Co., et al., v. Tedder, 78 Fla. 183, 82 South. Rep. 865; Dotson v. Milliken, 209 U. S. 237, 28 Sup. Ct. Rep. 489, 52 L. Ed. 763; Schweidt v. Storandt, 143 N. Y. Supp. 161; Beamer v. Stuber, 164 la. 309, 145 N. W. Rep. 936; Church v. Dunham, 14 Ida. 776, 96 Pac. Rep. 203; Smith v. Adelberg, 72 Wash. 434, 130 Pac. Rep. 494; Realty Bonds & Finance Co. v. Point Richmond C. & L. Co., 171 Cal. 238, 152 Pac. Rep. 433; Richardson v. Olanthe Milling, etc., Co., 164 Ala. 411, 52 Sou. Rep. 659, 140 Am. St. Rep. 45.”

The rule as to commission for finding a purchaser ready, willing and able to purchase is well settled in Florida. The usual procedure is in a common law action, but the defendant below being a married woman, her liability therefor, if any, must be determined by a 'court of equity. Section 2, Article XI, of the Constitution of Florida provides:

“Section 2. A married woman’s separate real or personal property may be charged in equity and sold, or the uses, rents and profits thereof sequestrated for the purchase money thereof, or for money or thing, due upon any agreement made by her in writing for the benefit of her separate property; or for the price of any property purchased by her, or for labor and material used with her knowledge or as'sent in the construction of' buildings, or repairs; or im próvements upon her property, or for agricultural or other labor bestowed thereon, with her knowledge and consent.”

The question for decisions here is: Are the benefits arising out of the contract, supra, sufficient for a recovery to be enforced in a court of equity as against the separate property of a married woman?

The case-of Blodgett v. Steinmetz, 98 Fla. 238, 123 Sou., Rep. 761, was a suit by a real estate broker against a married woman to recover a commission in which the married woman agreed in writing to pay one-half of the deposit, which was the sum of $1250.00, if it was forfeited by the purchaser. The deposit was forfeited by the purchaser when Mrs. Steinmetz repudiated her- written agreement, kept all the deposit and refused to pay the real estate broker one-half of the forfeited deposit which she in writing agreed to pay. An equity suit was filed against her in which it was sought to subject her separate property to the payment of the debt which she in writing obligated to pay the real estate broker. The theory of the equity suit was that the separate property of Mrs. Steinmetz was increased by the activities of the real estate broker in assisting in a sale whereby a forfeiture of the deposit was received by Mrs. Steinmetz. The Court said:

.“The agreement made by her was equivalent to the following proposition: since by Blodgett’s activities he increased or benefited the separate property of Mrs. Steinmetz by the amount of $1250 forfeited by Zachry because of his failure to purchase the land, Mrs. Steinmetz agreed in writing to pay Blodgett a part of-the sum to be received. There can be no question that the lawful acquisition by her of $1250 through the activities of Blodgett benefited her separate property by that sum. It was with reference to that increase or benefit that her agreement in writing was made. She was competent under the provisions of the Constitution to make the agreement. It was for the benefit of her separate property. It resulted as the parties contemplated by an increase or benefit of her separate property to the extent of the sum forfeited. She was required to part with no part of her property to secure it and eqüity will not support her in a transaction of double dealing nor are the provisions of the Constitution intended to be used as a shield to cover breaches of faith in business transactions into which she may enter. When she makes an agreement in writing with another for the purpose of benefiting her separate property and agrees to pay for the services which bring it about her separate property may be subjected in equity to the end that her agreement shall be enforced and her obligation discharged. If her sepárate property is actually benefited by the services of one whom she engages and her agreement in writing is made with him for that purpose she is clearly liable.”

In the case of Blood v. Hunt, 97 Fla. 551, text pages 571-72-73, 121 Sou. Rep. 886, this Court had before it the property of married women when it said:

“A wife’s separate estate is an equitable estate in property the legal title to which is in some other person for her benefit. In equity such separate estate may be-subjected to the payment of debts of the wife, if not restrained .by the legal effect of the instrument creating the estate. Dollner v. Snow, 16 Fla. 86; 30 C. J. 795; 870, 13 R. C. L., page 1134, et seq. A wife’s separate property in Florida is that which she holds in her own right by virtue of the Act of March 6, 1845, by Sec. 26, Art. IV, Constitution of 1868; and by Sec. 1, Art. XI, Constitution of 1885. See Pom. Eq. Juris. (4th Ed.) Sec. 1099, et seq.

“As at common law married women could not in general make contracts that would be binding on them personally they could not be sued at law for breach of con tract, and this was the general rule recognized and applied by courts of equity both in England in 1776 and in Florida after the cession in 1821. But in proper cases courts of equity would subject the separate equitable estates of married women to debts made by or for them which they, upon equitable principles, should pay for their equitable estates. See Norton v. Tugvill, 2 Peere Williams 144; 30 C. J. 870 and cases cited. Vols 1 and 3 Pom. Eq. Juris., Section 52, et seq. Sec. 1098, et seq. This procedure in equity remedied in part the harshness and injustice of the common law. It enabled married women to have at least some transactions for their own benefit, by securing their creditors to the extent of making the separate equitable estate of married women liable for debts incurred for their benefit in such transactions. * * *

“This was the state of the law in Florida when by the Act of March 6, 1845, married women were specifically accorded the power to hold in their own right and by proper procedure to dispose of their separate property. This.statute, if not also the Acts of 1823 and 1935, gave to married women the legal title to their ‘separate property,’ sometimes called “statutory separate property,” because it was definitely secured to married women by the Act of March 6, 1845. See also Sec. 26, Art. IV, Constitution of 1868; Sec. 1, Art. XI, Constitution of 1885. These statutes did not authorize married women to make contracts in general,but they were authorized to sell, convey or to mortgage their separate property, provided their husbands join in the sale, conveyance or mortgage in the manner required by the statutes. Secs. 5674, 5676, Comp. Gen. Laws 1937.

“Prior to the adoption- of the Constitution of 1885. the separate property, Blumer v. Polak, 18 Fla. 707, of a married woman, as distinguished from her equitable separate estate. Smith v. Poythrass, 2 Fla. 92, Merritt v. Jenkins, 17 Fla. 593, was subjected in equity to the payment of certain debts of hers, under general principles of equity jurisprudence. Schnable v. Betts, 23 Fla. 178, 1 So. R. 692; O’Neil v. Percival, 25 Fla. 118, 5 So. R. 809; Dollner v. Snow, 16 Fla. 86, 13 R. C. L., page 1147; Fairchild v. Knight, 18 Fla. 770. The remedy in equity was afforded because there was no remedy at law against married women who had no power at common law to make binding contracts, and the statutes of the State have not changed the common law respecting the powers in general of married women to' make binding contracts. Harwood v. Root, 20 Fla. 940, 960, Va. Ca. Chem. Co. v. Fisher, 58 Fla. 377, 50 So. Rep. 504; Bailey v. Smith, 89 Fla. 303, 103 So. R. 833, 107 So. Rep. 350, McGill v. Art Stone Con. Co., 57 Fla. 498, 49 So. Rep. 539; Livingston v. Powers, 85 Fla. 254, 95 So. Rep. 622.”

In Blodgett v. Steinmetz, supra, this Court held that the married woman’s separate property was increased by receipt of a forfeiture of the deposit in the sum of $1250.00 brought about by the activity of the real estate broker in procuring a purchaser and inducing him to make the deposit. In the case at bar Mrs. Mary I. Davis listed her property with the appellees for the purpose of obtaining a purchaser, ready, willing and able and at the same time in writing fixed the total amount acceptable to her for it. When the appellees obtained the purchaser according to the agreement, it was possibly realized by the appellant that her property was being sold for a sum less than its market value and desiring an increased amount then stipulated for it, she repudiated her written agreement with appellees and advanced the total price to the extent of $9,000.00 and listed it with another broker. The appellees, however, had performed their agreement and the contract was with them executed and the appellants could have had they so desired.

In Harkness v. McKee-Brown Lbr. Co., 17 Okla. 624, 89 Pac. Rep. 1020, text 1022, in defining “benefits” the Court said:

“That there was a sufficient consideration to support the agreement whereby the lumber company -waived its right to file its lien is well settled by the authorities. Page in his excellent work of Contracts (Vol. 1, par. 274) says: ‘A valuable consideration is some legal right acquired by the promisor in consideration of his promise, or forborne by the promisee in consideration of such promise. A common form, of stating the same principle is that a valuable consideration for a promise may consist of a benefit to the promisor, or a detriment to the promisee. ‘Benefit,’ as used in this connection, means that the promisor has in return for his promise acquired some legal right to which he would not otherwise have been entitled. ‘Detriment’ means that the promisee has in return for the promise forborne some legal right which he would otherwise have been entitled to exercise.’ ”

• Bouvier’s Law Dictionary, Vol. 1, page 338, defines “benefit” as: “Profit, fruit or advantage. The acceptance of the benefits of a contract estops a party from denying its validity; City of St. Louis v. Davidson, 102 Mo. 149, 14 S. W. 825, 22 Am. St. Rep. 764; Spencer v. Jennings, 139 Pa. 198, 21 Atl. 73; Wood v. Bullard, 151 Mass. 324, 25 N. E. 67, 7 L. R. A. 304; Palmerton v. Hoop, 131 Ind. 23, 30 N. E. 874; Gladstone Exch. Bank v. Keathing, 94 Mich. 429, 53 N. W. 1110; St. Louis & S. F. R. Co. v. Foltz, 52 Fed. 627.”

It is admitted on the record that appellants breached the contract and a complete and adequate remedy exists therefor, except as to married women and some others but when a remedy is sought against a married woman to subject her separate property to the payment of her written promise or obligation the burden of proof is on the appellants to show that her separate property received the benefits. It cannot be a speculative or a contemplated benefit, neither can this benefit depend upon the law of supply and demand or other economic law. The benefit was clearly shown in Blodgett v. Steinmetz, supra. We have searched in vain for the evidence to support the conclusions of the Chancellor below on this point. The decree appealed from is reversed for further proceedings not inconsistent with this opinion. It is so ordered.

Wi-iitfield, Terrell, and Buford, J. J., concur. Ellis, C. J., and Brown, J., dissent.