Opinion
March 21, 1952. Rehearing Denied May 20, 1952.
Appeal from the Circuit Court, Dade County, Marshall C. Wiseheart, J.
J.M. McCaskill, Miami, for appellant.
Anderson Nadeau, Miami, for appellee.
This cause comes here for the second time on appeal by plaintiff-appellant Twyman from a verdict and judgment entered for the defendant appellee. It appears by the record that Twyman filed a bill of complaint in the Circuit Court of Dade County, Florida, against Minnie Livingston in which he alleged the existence of a joint adventure between the parties growing out of described real estate transactions. There was a decree for plaintiff Twyman below and defendant Livingston appealed. We reversed the decree appealed from and held that the allegations of fact appearing in the bill of complaint did not warrant the intervention of a court of equity. In our order of reversal we directed that the cause, by appropriate order, be transferred to common law side of the court. See Livingston v. Twyman, Fla., 43 So.2d 354.
Pursuant to the terms and provisions of our mandate, the cause was transferred to the law side of the court. On May 23, 1950, plaintiff Twyman filed a declaration consisting of three counts. The first count alleged that the plaintiff and defendant entered into an oral agreement to invest in Miami real estate. The plaintiff, according to the agreement, was to supply the necessary knowledge, skill and judgment in the selection of real estate to purchase and the defendant Livingston was to supply the money; that described real estate situated on Flagler Street in Miami was purchased pursuant to the oral agreement and defendant Livingston supplied the required money. According to a letter dated January 20, 1937, written by Twyman to defendant Livingston it was their agreement that the net profits arising from the purchase and sale of the Flagler Street property would be equally divided between the plaintiff Twyman and defendant Livingston. This letter is, by appropriate words, made a part of special count one of the declarations, and is viz.:
"Exhibit No. 1 (3) January 20, 19 47
"Miss Minnie Livingston "San Sebastain Hotel "Coral Gables, Florida
"Re: Lots 18 19, Block 8 South City of Miami — West Flagler Street.
"Dear Miss Livingston:
"This is to confirm the oral agreement made with you this morning regarding the purchase of the above property.
"Subject to our being able to obtain a marketable title to this real estate, I am to purchase Lot 18 at $6300, with $2000 cash and the balance payable on or before 1, 2 and 3 years, in equal installments, bearing 6% interest payable semi-annually, and to purchase Lot 19 for $6000, with $2000 cash and the balance likewise in three equal installments, giving notes and mortgages to evidence and secure the balance of the purchase price. You are to advance the cash payments and the property then is to be conveyed to you subject to the indebtedness but without obligation upon you personally on the notes or mortgages. The lots are now bringing in a small income, which is to be collected by me and used in the payment of taxes and interest so far as this will apply.
"It is understood of course that we are purchasing the property for the purpose of selling it at a profit and it is contemplated that the property will be sold within the next year. If it is not sold, however, then I shall ask you to pay the semi-annual interest (so far as the rents are not sufficient after the payment of taxes), and also one or more deferred annual principal installments. In the event you decide later that you do not wish to make further payments, then your only obligation will be to protect your investment, so far as you may elect to do this; and in this connection I will try to dispose of one of the lots at that time so as to remove the necessity of actually advancing any further cash. When the property is sold you are first to receive all of the money which you may advance on the property, and the net profits are to be divided equally between you and me.
"As I told you, I will do all the work, see that the title is marketable, prepare all the papers shield you from personal liability, collect the rents, handle the payment of taxes, interest and deferred principal installments, and advise you when I think the property should be sold.
"I believe that this expresses our agreement. In a day or so when the title is cleared, as I think it will be shortly, I shall ask you to advance the initial payment of $4000, that is $2000 on each lot. This can be handled by your check to me. When the property is acquired, I shall make a statement to you and convey the property to you.
"Very truly yours, (Signed) Lewis Twyman."
"LT:H
Plaintiff Twyman's special count two was substantially the same as special count one. This count, by appropriate words, makes plaintiff's Exhibit No. 5 a part thereof. Exhibit No. 5 is viz.:
"Exhibit No. 5
May 17, 1937.
"Miss Minnie Livinston "San Sebastian Hotel "Coral Gables, Florida
"Re: Real Estate Investments Lots 33 and 34, Lawrence Estate East Addition
"Miss Minnie Livingston
"I have heretofore acknowledge receipt from you of $1500 in connection with the proposed purchase of the above property, which, disrobed of its technical legal description, is known as the southeast corner of the intersection of Southwest First Street and 10th Avenue.
"After making successive lower offers I finally bought lot 34 above, which is the actual corner lot, at a price of $1500 cash. The abstract has been tendered but the title was far from clear or marketable. I am told that certain instruments which show the title to be marketable have been recorded. The abstract is being recertified and the transaction will be closed as soon as possible.
"Regarding the adjoining lot 33, which is the corner complement of this lot 34, and therefore quite desirable, I still believe this can be acquired for $1250, or thereabout. Accordingly, I have purchased certain outstanding tax certificates on this lot, intend to pay the City taxes, which is the proper procedure to foreclosure, and shall file a foreclosure suit. I am not bringing this in your name but in the name of a corporation which I control, for the reason that I assume you properly might not want your name in a lawsuit. I have already advanced several hundred dollars on this lot and there will be several hundred more to pay shortly, in paying the taxes and handling other expenditures in the foreclosure and therefore, I suggest that, at your entire convenience, you send me the further sum of $500, which will be applied on the purchase of this lot.
"It is unnecessary to say that I am handling this transaction for you upon the same terms and conditions as I am handling the one on Flagler Street, namely. Lots 18 and 19, Block 8 South. I am very glad that we are trying to acquire this property, and tho it is not income producing I think the price sufficiently low to warrant a good profit.
"Sincerely yours, (Signed) Lewis Twyman."
"LT:H
Plaintiff Twyman's count three is a common count in which it is alleged that defendant Livingston is indebted to the plaintiff on accounts stated and agreed upon between them in the sum of $198.84. Attached to and made a part thereof is a bill of particulars in which it is stated that the defendant Livingston is indebted to plaintiff Twyman in the sum of $198.84, with interest from February 3, 1947.
On May 29, 1950, defendant-appellee Livingston demurred to count three of the declaration (being a count on an account stated and agreed upon by the parties) and grounds of the demurrer were: (1) the declaration failed to state a cause of action; (2) it affirmatively appears that the action is not within the jurisdiction of the court; (3) it appears that the claim is barred by the Statute of Limitations. On the aforesaid date a demurrer was addressed jointly and severally to special counts one and two of the plaintiff. Grounds thereof were: (1) the declaration fails to state a cause of action; (2) the declaration fails to allege facts which bring the action within the jurisdiction of the court; (3) other and various grounds are set forth in said demurrer of defendant Livingston, which two demurrers were by the trial court, in an appropriate order, overruled and denied.
It appears by the record that the defendant-appellee Livingston filed in the cause three different sets of pleas addressed to the three counts of plaintiff's declaration, each of which went out on plaintiff's motion to strike, except pleas 1, 2 and 3 upon which the parties went to trial before a jury. Plea 1 was to the effect that the defendant did not promise as alleged. Plea 2 set forth that the defendant never was indebted as alleged. Plea 3 denied that any profit-sharing agreement was ever entered into as alleged. The trial court denied the plaintiff's motion or request to amend the declaration during the progress of the trial and thereafter granted or sustained the defendant's motion for a directed verdict. From a final judgment for defendant Livingston entered below an appeal has been perfected to this Court.
Counsel for the parties, pursuant to Supreme Court Rule 11(5), 30 F.S.A., entered into a written stipulation as to the portions of the record as were developed below during the trial and which were essential and necessary for a review by this Court of the precise question or questions as being determinative of this controversy. As a result of the stipulation of counsel our burden in this cause has been materially reduced. We are only required thereby to examine a few pages of the transcript rather than to grope through a lengthy record, many portions of which are not helpful but expensive to the litigants and add to the burden of a busy Court. We trust that Rule 11(5), observed by counsel in the case at bar, will be followed whenever possible by other attorneys perfecting appeals to this Court.
According to the stipulated record plaintiff-appellant adduced considerable testimony and was ready to rest his case in chief, except as to the testimony of a single witness who, for some reason, was not available when called. It appears that the witness was being called to testify as to the value of the property in the first part of 1947. As the writer studies the record, the witness in question never testified. One of the stipulations is as follows: "It is further stipulated and agreed that in the course of the trial the plaintiff (appellant) offered no evidence in support of his claim for recovery on a quantum meruit basis."
The record reflects the following:
"Mr. Anderson: The defendant moves the Court to instruct a verdict for her upon the grounds that it affirmatively appears from the plaintiff's case that either the cause of action has been barred by the statute of limitations or that action is prematurely brought, because it appears that the property which is the subject matter of the lawsuit has not been sold, and the contract on which the plaintiff declares provides that he shall have a part of the profits when the property is sold.
"In further support of her motion, the defendant shows to the Court that it appears from the declaration that the plaintiff says that he elected to treat the contract as rescinded and that in that case, he would be entitled only to the value of the services which he rendered under the contract, which he has not attempted to prove.
"The defendant also, if the foregoing motion is denied, moves the Court to direct a verdict for the defendant as to that part of the declaration which seeks to recover damages, being the value of one-half of the net profits of the West Flagler Street property, upon the ground that it affirmatively appears from the testimony that the transaction with respect to that property was canceled and that the plaintiff does not consider that the defendant is indebted to him on that transaction.
"(Ruling on motion for a directed verdict for the defendant on Friday afternoon, June 15, 1951:)
"The Court: In view of all of the pleadings in this case, I am going to deny the motion at this time.
"(Proceedings had on Monday, June 18, 1951:)
"The Court: I believe, Mr. McCaskill, on Friday at about 4 o'clock there came a time when you said you had another witness and he was not available at the time, and, as I understand it, he was a witness who was being called to testify as to the value of this property in the first part of 1947.
"Mr. McCaskill: Yes, sir.
"The Court: With that announcement, Mr. Anderson, instead of proceeding with his witnesses, proceeded with a motion for a directed verdict, and after considerable argument I announced a ruling that I was denying the motion at that time. Over the weekend, I have had considerably more leisure moments to study the issues in this case, and it seems to me that as to the two counts on each of the two pieces of property, there can be no recovery in this case. As to the other count which claims as a part of the same transaction the sum of $198, there could be a recovery on that amount, but at this time I am going to change the ruling that I made the other day and direct a verdict for the defendant on the first and second counts.
* * * * * *
"The Court: I am going to change my ruling from last Friday and direct a verdict on the first and second counts. Do you still want to withdraw that other count?
"Mr. McCaskill: We will consider that in a moment. Do I understand the Court's ruling upon the language in the declaration appearing in each of the two special counts to the effect that the plaintiff `thereupon elected to treat said agreement as rescinded,' and so forth?
"The Court: That, in connection with all other allegations in the declaration and in each count thereof.
* * * * * *
"Mr. McCaskill: The second thing I wish to ask is this. The defendant has been permitted at this stage of the trial to demur or move to dismiss our declaration. That is the effect of the motion that is before this Court. In view of that action being taken at this late stage, and it being the custom to give the plaintiff a right to amend, does your Honor think a directed verdict should be made or that the case should be sent back under the rules for further pleading?
"The Court: I think a directed verdict should be made and judgment entered on the verdict, and you can appeal from that.
"Mr. McCaskill: You don't think the plaintiff should be given an opportunity to amend?
"The Court: No, sir. I think you stated your case, and it has been so argued here.
"Mr. McCaskill: And you are, in effect, sustaining a demurrer interposed at this late date, notwithstanding that he demurred before and he also filed pleas?
"The Court: You may consider it as a demurrer. I am considering it on the motion for a directed verdict.
* * * * * *
"Mr. McCaskill: One further request, may it please the Court. In view of the fact that this is based upon a current interpretation of the language about rescission and in view of the fact that it has been raised at this late date, we ask that we be permitted now to amend our declaration by the insertion of three words to each of those counts by adding on page 9, the last paragraph, which reads: `* * * elected to treat said agreement as rescinded * * *' the words `by the defendant' and the same interlineation in the second count appearing on page 13.
"The Court: I will deny the motion at this time. Do you have any announcement to make with regard to the third count now which you have suggested a couple of times but have made no formal announcement of?"
On May 29, 1950, an order was entered by the trial Court overruling defendant's two demurrers directed to counts 1, 2 and 3 of plaintiff's declaration. Ground one of each of the two demurrers as overruled was to the effect "that the declaration failed to state a cause of action." After the plaintiff adduced considerable testimony, the trial Court reached the conclusion that counts 1 and 2 of the declaration were fatally defective — when counsel for the plaintiff requested the trial court for leave to amend by inserting the words "by the defendants" after the word "rescinded" at the end of counts 1 and 2 and on the fourth line from the last line thereof. Plaintiff's motion to amend, as above requested, was denied by the trial Court and it is here contended that the trial Court abused its discretion by this ruling.
Section 50.20, F.S.A., provides that defects and errors in pleadings in civil causes shall upon application be made or allowed upon such terms as the Court deems fit; "and all such amendments as may be deemed necessary for the purpose of determining in the existing suit the real question in controversy between the parties, shall be so made, if duly applied for." The law favors liberality in amendments to pleadings. Marks v. Fields, 160 Fla. 789, 36 So.2d 612; Stranahan, Harris Co. v. Hillsborough County, 154 Fla. 658, 18 So.2d 789; Warfield v. Drawdy, Fla., 41 So.2d 877; Atlantic Coast Line R. Co. v. Edenfield, Fla., 45 So.2d 204; Florida Common Law Rule No. 15, 30 F.S.A. The trial Court erred in refusing to permit or allow the plaintiff's-appellant's application to amend Special Counts 1 and 2 of the declaration.
The judgment is reversed and a new trial awarded.
THOMAS, ROBERTS and MATHEWS, JJ., concur.
SEBRING, C.J., and HOBSON, J., dissent.
TERRELL, J., not participating.