American Securities Co. v. Goldsberry, 69 Fla. 104

69 Fla. 104 | Fla. | 1915

Ellis, J.

(After stating the facts.) — Under the first assignment the appellant contends, that the averments in the answer in respect to the alleged agreement of the complainant, Samuel S. Goldsberry, with the mortgagor to extend the time of payment of the note for one year should have been accepted by the Chancellor as true and the bill dismissed. The answer does not deny the execution of the note by Charles D. Mills, the delivery of it to the complainant, the execution and delivery of the mortgage by Mills and wife to the complainant to secure the payment of the note, nor the assumption by the American Securities Company of the mortgage indebtedness, described in the bill, but avers upon information and belief, that at the time of making the contract of purchase for a part of the mortgaged premises, “between the said Mills, the mortgagor in said mortgage, and the assignors of this defendant, to-wit: February 12, 1913, prior to the maturity of said note, the mortgagee, Samuel S. Goldsberry, agreed with the mortgagor to extend the time of payment of said note for one year and which said promise was communicated to said Holloman and McMillan by said mortgagor Charles D. Mills, and relying thereon said Holloman and McMillan assumed the payment of said note and mortgage, and in turn said promise and agreement was communicated to this1 defendant and relying thereon it assumed the payment of said note and. mortgage.” It is perfectly clear that the principal faer in the quoted part of the answer is the alleged agreement between Goldsberry, the mortgagee, and Mills, the mort gagor and maker of the note, whereby Goldsberry agreed to extend the.time of payment of said note for one year. If the agreement was not made, it would be of no importance that Mills made such representation to Holloman and McMillan and that such representation was made to the American Securities Company. The answer does not allege that Goldsberry told Holloman and McMillan or the American Securities Company that he had made such agreement with Mills, although Goldsberry is the man against whom the agreement is invoked.

There is no doubt that an agreement between the complainant Goldsberry and the defendant Mills for an extension of the time for the payment of the indebtedness based upon a good consideration would be valid and a good defense. But such an allegation would be an affirmative one of new matter and not responsive to the bill and the burden would have rested upon the defendant to establish it by a preponderance of the testimony, Pinney v. Pinney, 46 Fla. 559, 35 South. Rep. 95; Tyler v. Toph, 51 Fla. 597, 40 South. Rep. 624; Parsons v. Ramsey, 53 Fla. 1055, 43 South. Rep. 503; Griffith v. Henderson, 55 Fla. 625, 45 South. Rep. 1003.

If the complainant had told Holloman and McMillan or the American Securities Company at the time the indebtedness was assumed that there was such an agreement between Goldsberry and Mills, that would have been a good defense upon the principle of estoppel. Such an allegation would have been responsive to the bill, it would have set up matter which discharged the defendant, and would have shown that the matter charging him and discharging him grew out of the same transaction, and would have been evidence in favor of the defendant. Maxwell v. Jacksonville Loan & Imp. Co., 45 Fla. 425, 34 South. Rep. 255. But the rule making an answer evidence in favor of the defendant where a case is heard on bill, answer and replication, requires that it should not only be responsive, but direct, positive and unequivocal. Southern Lumber & Supply Co. v. Verdier, 51 Fla. 570. 40 South. Rep. 676; Kellogg v. Singer Manuf’g Co., 35 Fla. 99, 17 South. Rep. 68. The averments of the answer in this regard were neither direct, positive nor unequivocal. The averments are that Mills told Holloman and McMillan of such an agreement and that “in turn said promise and agreement was communicated to this defendant,” etc. By whom it was communicated to defendant, the answer does not state. • It is not permissible to infer that it was communicated to it by Goldsberry. The averment that Mills told Holloman and McMillan of the agreement, is immaterial and not responsive to the bill. Goldsberry was not bound by any statement made to Holloman and McMillan or the American Securities Company by Mills, in the absence of any shewing in the answer that Mills acted with authority from Goldsberry.

The cause was heard on Bill, Answer and Replication, the allegations of the bill necessary to entitle the complainant to relief were admitted by the answer. The averment of'the answer as to the alleged agreement between Goldsberry and Mills concerning an extension of time for the payment of the indebtedness evidenced by the note, not being responsive to the bill, and being an affirmative allegation of new matter set up by way of defense upon information and belief, was not evidence for the defendant, and the Chancellor rightfully declined to accept it as true. Neither was the averment in the answer as to the communication of such an alleged agreement to Holloman and McMillan by Mills, or the communication of such information to the defendant, evidence for the defendant. Simpson v. Barnard, 5 Fla. 528; 1 Ency. Pl. & Pr. 920.

Under the second subdivision of the first assignment of error, the appellant urges that inasmuch as the bill alleges that the American Securities Company had,entered into a contract of purchase of the property described in the bill from Charles D. Mills and his wife, and had been let into possession of the premises and claims some interest in the premises and had assumed to pay the note and mortgage, and i¡hat the answer set up a contract of purchase of a part of the premises from Mills, and an assignment of the contract to the1 American Securities Company and an assumption of the indebtedness by the company, that the complainant should have submitted evidence as to the contract alleged in the bill, and that without such evidence the decree was erroneous in view of the averments in the answer.

We do not agree with appellant’s solicitors on this point. The assumption of the indebtedness by the appellant placed it in the same situation with reference to the property purchased as the defendant Mills occupied with reference to it. The lien of the mortgage existed upon all of the property without any right of the appellant to insist that one part of the premises or the other should be sold first. The American Securities Company assumed the indebtedness, the debt thereupon became its debt, so far as the mortgagor Mills was concerned, and it was the failure of the American Securities Company to pay it when it became due that brought about the foreclosure. Mills might have complained Avith some reason, but we think that appellant had no equity as to this feature of the case.

Under the second assignment of error several questions are discussed by appellant’s solicitors, relating to the decree of April 3, 1914. It is urged that the appellant’s exceptions to the Master’s report based upon the allowance of Eight Dollars and sixty cents for an abstract of the property, and Eight Hundred Dollars for solicitors’ fees should not have been overruled, but that the exceptions on tlie contrary should have been sustained and the items disallowed.

The bill alleges, and the mortgage which is attached to the bill and made a part of it, recites that the mortgagor should pay all costs and expenses, including reasonable attorneys’ fees incurred by the mortgagee in the collection and enforcement of the mortgage. The decree of February 19, 1914, adjudged the equities to be with the complainant, that he was entitled to a foreclosure of the mortgage and to have the cause referred to a Special Master to take and state an account of the moneys due to the complainant. A Special Master was appointed with directions to take and state an account of all moneys due the complainant on the note and mortgage set forth in the bill of complaint, together with a reasonable attorneys’ fee to be allowed complainant’s solicitors for their services in the cause, and to ascertain whether there were any other or further sums due the complainant for or on account of any of the terms or conditions in the mortgage set forth in the bill of complaint, with, directions to the master to report his findings to the court.

The master proceeded to ascertain by the testimony of witnesses what sum should be allowed as a reasonable attorneys’ fee for complainant’s solicitors. This was objected to by defendant American Securities Company on the grounds that the testimony was immaterial and irrelevant, that the time for taking the testimony had passed and that the decree did not authorize the Master to take such testimony. The complainant offered a receipted bill for eight dollars and sixty cents for an abstract of the property, this was also objected *to by the defendant upon the same grounds. The note was received without objection.

These objections were again urged by the defendant upon exceptions to the Master’s report. The Master’s report was made on the 24th day of February, 1914, and found the amount due on the note and mortgage to the complainant to be Eight Thousand Dollars for principal, five hundred and nineteen and 55/100 dollars interest for eleven 'months and four days. Solicitors’ fee eight hundred dollars, amount paid by complainant for abstract eight and 60/100 dollars, and twenty-five cents interest on the same, making a total sum of Nine Thousand Three Hundred and twenty-eight Dollars and forty cents. The exceptions to the report also contained a motion to exclude and strike from the statement of the account the amount found by the Master for solicitors’ fees, the amount paid by complainant for the abstract and the interest on same, also to strike from the record the testimony as to attorneys! fees.

These objections and exceptions were not well taken. The decree of February 19, 1914, adjudged that the complainant was entitled to the relief prayed. It determined the equities in the cause. The matter of ascertaining the amount due under the terms of the mortgage was a mere matter of detail to be worked out by a Master before a decree could do full and complete justice. There was no objection offered to the introduction of the receipt for the amount paid for the abstract upon' the grounds of incompetency, the objection related only to its relevancy or materiality. Expense incurred in obtaining an, abstract of the title to the property was a legitimate item of expense under the terms of the mortgage, and appellant does not show that the item allowed was improper. In taking testimony as to the reasonableness of an attorney’s fee to be allowed complainant’s solicitors, and receiving evidence as to the expense to which complainant had been subjected by reason of the failure of the mortgagor or his assigns to comply with the agreement and covenants in the mortgage, the Special Master complied with the directions and instructions of the court. It is difficult to perceive'how he could have proceeded in any other way. The amount of the attorney’s fee, or the amount .of expense to which the mortgagee had been subjected because of the failure of the mortgagor or his assigns to perform the agreements on their part to be performed, were not matters upon which the equities of the case were determined, but mere matters of detail to be ascertained by a. Master and reported to the court in order that a decree doing full justice might be made and entered. Equity Rule 71 requiring testimony to be taken within three months relates to the testimony to be taken on the issues presented by the bill and answer and replication which must be determined to settle the equities in the-cause. The Master’s duties are clerical, not judicial. The evidence in examinations before him is required to be taken down in writing and filed with his report. This is for the purpose of enabling the Chancellor to determine the correctness of his findings.

It is contended that the decree of- April 3rd, 1914, was erroneous in allowing interest upon the amount reported by the Special Master to be due, at eight per cent per annum from the date of the report, instead of at seven per cent, the rate specified in the note. The amount of the indebtedness on the note and mortgage found by the Special Master to be due exclusive of interest, should have continued to bear interest at the contract rate to the date of the final decree,' which was April 3, 1914. That is to say, the principal should bear interest at the contract rate to the date of the final decree, after which the total indebtedness, including principal and interest, attorney’s fees and expenses adjudged by the decree to have been incurred, bears interest at the rate prescribed by the statute.

The error complained of consists in allowing interest on the amount found by the master to be due at eight per cent per annum from the date of the report instead of at seven per cent, the contract rate, and the period during which the interest was compounded. This error amounted to approximately eleven dollars in the complainant’s favor, in a decree involving Nine Thousand Three Hundred and Twenty-eight Dollars. This error was not called to the attention of the court. It was partly corrected by the Master in his report of the sale. It does not appear that the error caused injury to the appellant or handicapped or prevented him from paying or tendering the amount actually due before the sale took place. It does not appear to have in any way affected the price of the property brought at the sale, which was considerably less than the amount adjudged to be due. This small error in the calculation of interest was one which should have been brought to the attention of the Circuit Court. See Brevard Naval Stores Co. v. Commercial Bank of Jacksonville, 67 Fla. 281, 64 South. Rep. 943. If a deficiency decree is entered for the complainant, the correction may be made.

The appellant contends that the decree is erroneous because it does not find from whom the amounts found to be due are due to complainant; that the decree does not require the Special Master to sell the property to the highest bidder; that it does not fix the terms and conditions of the sale, nor does it require notice of the terms to be given.

There is no merit in any of these objections. While the decrees could have been prepared with more clearness than they were, we think that the decrees of February 19th and April 3rd, show that the defendants are required to pay the amount found to be due on the note and mortgage for principal, interest, attorney’s fees and expenses, that the latter required a public sale for cash, because the Master was required; to distribute the proceeds arising from the sale as directed in the decree, and was required to give notice of the salb by publication in a newspaper.

The decree is affirmed.

Taylor, C. J., and Shackleford, Cockrell and Whitfield, JJ., concur’.