18 Fla. 353 | Fla. | 1881
delivered the opinion of the court.
The respondent in this case seeks, independent of its mei'its, to maintain the final decree dismissing the bill upon its. merits-on account of matters in connection with the supplemental bill. It is objected that it was filed ex parte and without notice. After general demurrer, plea and answer in support thereof, and hearing upon the merits and. final decree, the want of notice if necessary in such case is waived. It is also urged that by this bill new matters occurring since the filing of the original bill constituting a new case are sought to be brought forward by way of supplement; that the case made by the hill, if any case is made, is the subject-matter of an original suit in equity. If any such objection as this was made at any time in the Circuit Court the record does not disclose it. The first pleading in response to this supplemental bill is a general demurrer for want of equity. This being overruled, there was a plea and answer in support thereof and after testimony a final hearing.
This objection, even if it be a good one, must, under these circumstances, be regarded as waived. There was here a general demurrer for want of equity. No such ground as that the matter of the supplemental. bill is the subject of original rather than supplemental proceedings was set up
This disposes of the matter presented by the respondent as the ground upon which the decree should be sustained. The appellant asks a reversal upon the ground that the hearing being had upon the plea it was error for the court to dismiss the bill; that the decree should have been interlocutory, permitting him to take issue upon it. This is not the ease made by this record. The notice was for a hearing upon the plea to be had on one day and for a final hearing and determination of said cause on the next day. The final hearing was had long after the time fixed for either hearing, and the decree of the court was, that upon the law and merits of the case the plea of the defendant be sustained and the bill dismissed. This is a decree not sim
The plaintiff here in no manner undertook to reply to the plea, and it was proper that the order allowing the plea should dismiss the bill, as the plaintiff .in no way suggested a desire to reply to it and go into proofs, but on the contrary gave notice that he would on the next day after the hearing of the plea ask the Judge to proceed to a final hearing, avering that the case was “ now ready ” (meaning at the time the notice of hearing upon the plea and for final hearing was given,) “for final determination.” Under
It is thus apparent that in the view in which this case has been discussed by the defendant and respondent, we can see no ground for a dismissal of the bill, which order he seeks to sustain, nor do we agree with the legal propositions upon which the appellant and plaintiff seeks to reverse the decree.
"We will state our own view of the ease as it was presented to the Cix’cuit. Court.
This is a case of a plea and answer in support thei’eof. The supplemental bill sets up axx agreement, which it alleges provided for and agx’eed upon the terms of a settlement which it alleges was eai’ried out by subsequent agreement, under which subsequent agreement plaixxtiff claimed a sum was due him. The plea "set up the first agreement as a final settlement, and the answer in support thereof denies any subsequent settlement as alleged, or that any sum was due.
We think, therefore, that in our treatment of the case we must regard any such irregularity as waived by the plaintiff treating the issues as properly made up. This brings us to the consideration of the case as it appears upon the pleadings and the testimony.
We do not propose to discuss the facts at length. After a bill to settle the partnership matter, a reference to a master and his report, these parties being each dissatisfied with the report as a final settlement of their differences, by their attorneys upon conference executed the following paper.
After stating the case the paper proceeds:
“ The master’s report in this case having been filed and exceptions thereto withdrawn, it is agreed between the parties to said cause that the same' be dismissed and that each party pay his own costs, except the master’s fee of fifty dollars, which having been paid by J. R. Crump, it is agreed that William Perkins shall refund to said Crump twenty-five dollars. It is further agreéd that the accounts and notes having been assorted into three classes; namely, good, bad and doubtful; it is agreéd that the attorneys in*365 said case shall proceed as early as practicable to divide said accounts equally between said parties, dividing to each party an equal amount of each class of said accounts and notes, and that upon said division said attorneys will execute their respective receipts to the respective parties for the notes and accounts divided to each, and that said accounts and notes remain in the hands of said attorneys respectively for collection or otherwise as either of the said parties may direct in reference to his own divided share of said notes, and that this be considered and' is hereby declared to be a final settlement of all demands between said parties growing out of said suit.
“Bolling Baker,
“Attorney for J. R. Crump.
“ R. B. Hilton,
“Attorney for William Perkins.”
After executing this paper, at a subsequent day, Crump, William Perkins, who could neither read nor write, and John H.‘ Perkins, his son, met at the office of Bolling Baker, Esq., for the purpose of dividing the notes as above agreed upon, the counsel of William Perkins being absent from the State, Crump’s counsel, who seemed to have determined and stated the account, swears that he stated a general result of the account at that time, which, though not reduced to writing then, was subsequently reduced to writing by him. He states that he has no recollection of either of the parties agreeing in any exact words that they,, or either of them, would be bound by such statements, but heard nothing to the contrary. This agreement was not then signed, this witness stating that both parties insisted upon leaving as soon as the result of the various calculations were arrived at, and that he thinks the}' left before statement “ B ” was drawn up in its present form. Statement “ B ” is as follows:
*366 Statement of Final Settlement of Accounts between J. R. Crump and W. Perkins of the Firm of Simpson Perkins.
Amount of good notes in hands of Messrs. Hilton, Walker & Baker, viz :
Note of James Conner and interest.......................... $2,407.78
Note of D. Gardner....................................... 382.42
Note of J. B. Crump, administrator of Simpson............. 108.07
$2,892.30
To amount cash collected by W. Perkins on notes and accounts ........................................$3,685.66
By amount debts paid...........'..............\ 2,208.30— 1,477.36
Total notes and cash good................................ $4,369.66
Of which Mr. Crump is entitled to receive from Mr. Perkins in cash..................................... $738.68
And in notes in Attorney’s hands................ 1,446.15— 2,184.83
Of which Mr. Perkins is entitled to retain in cash. $738.68
And to receive in notes......................... 1,44615— 2,184.83
$4,369.66
The $738.68 cash due Mr. Crump should bear interest from March 4,1867, until paid; thus, cash, $738.68 ; interest at 8 per cent, to settlement.
John H. Perkins testifies that he was present at the date of this last alleged settlement; that Bolling Baker was to make it in conformity with the .antecedent agreement for final settlement; that the-papers were examined and classified ; that a note signed by Conner & Carr they considered of sufficient value to divide by making two notes, and that the remainder of the papers were left in the hands of Bolling Baker for collection, and all the proceeds of said collections were to be equally divided; that Mr. Perkins paid $25, one-half of the fee of the'master, and this was considered a final settlement.
J. B. Conner, who was present at this interview and settlement, says a note held by them against him was divided, and that he knew of no agreement between them at that
Without entering into any .argument as to the effect, of this testimony, we simply state our conclusion to be that everything done by plaintiff’s counsel on this occasion, authorized by the defendant, was the classification and division of the notes and accounts.
The plaintiff’s counsel was not given authority either at that or any other time to make himself the master in this 'ease to state an account between the parties according to his views from the books. He was upon this occasion to classify the notes and accounts. This division he states he made, that both parties declined to take any of- the accounts then before them; that both agreed they were all hopeless, and that they would be left with him, and if either Crump or Perkins could collect anything from them or use them in any/way, each would account to the other for his share of the amount so realized. He states that he has never collected any of them, nor heard that Crump or Perkins ever did. This was the- execution of the agreement made by the parties. The subsequent statement “ B ” made in the absence of, and not consented to, did not represent any division of the notes-and accounts by Perkins & Crump, as they had agreed upon, but was the counsel’s view as to what constituted a division of the “ assets,” which, was his construction of the agreement, while no agreement to divide the “ assets ” was ever made, but a definite agreement. to divide the notes and accounts after classification as to value. The agreement that Perkins, as a matter of final settlement, should pay as a debt due Crump twenty-five dollars, and the agreement, as admitted by Baker, that the accounts as collected were to be divided between them, -is not consistent with the idea that Perkins upon this settle
The decree is affirmed.
A petition for a rehearing was filed.
delivered the following opinion thereon:
This case, as we understand it after careful examination, is stated and decided in the opinion heretofore delivered. After examination of this petition we find no sufficient reason to grant a rehearing. It is therefore denied.