25 Fla. 574 | Fla. | 1889
This ease is one of a bill in equity to foreclose a mortgage given to secure two promissory notes executed by the appellees, Mrs. Price and her husband, Jehu S. Price. The mortgage covers two pieces of land in Orange county, one of which may be aptly designated as Mrs. Price’s home place, and the other as the forty acre tract.
The title of the forty acre tract stood in the name of Judge Spear, under a deed of trust which had been made to him by A. M. Hyer. Frederick A. Lewter, the husband of Linnie W. Lewter, and Braxton Beacham, both of whom are appellants, were in the real estate business, under the style of Lewter & Beacham, at Orlando, in Orange county, and had been authorized by the trustee to sell the forty acre tract of land. They were to have as their commissions or compensation for selling, any sum they might realize over and above $1,500. The sale was to “ net” the trustee $1,500.
Though not a material consideration under the view we take of the ease, the negotiations detailed by the witnesses, show that Mrs. Price, and not her husband was to be the purchaser. Price and his wife did not have the ready money with which to pay for the forty acre tract, and there being two mortgages on the “ home ^place,” one of which they could not arrange to satisfy or at least cause to be cancelled on the records of the county, the party, Mr. Porter, who was to lend $1,500, refused to let them have the money on a mortgage they had executed covering both places and de. livered to him for his principal, Mrs. Wilson, for this purpose. Several months having passed without a consumma
Price and wife also executed on September 17th, 1886, two promissory notes, each for the sum of $250, one payable to Mrs. Lewter, and the other to Beacham, and a mortgage on both tracts of land to secure their payment, and it is to foreclose this mortgage that the bill before us has been filed.
The contention of the appellants, whose bill had been dismissed by the chancellor, is that these notes were given in consideration of services rendered for Mrs. Price, by Lewter & Beacham in negotiating the purchase of the forty acre tract and in securing the loan of $1,500 mentioned above. This is denied by appellees, whose position is that there was in fact no consideration for the notes and mortgage, and that the same were never to be operative until or unless the purchase of the forty acre tract should be consummated.
It is clear from the testimony in behalf of the appellants that two thousand dollars is the lowest price at which Lewter & Beacham ever offered the forty acre tract to Price or his wife. According to Lewter’s testimony’, he was in Price’s shop about the last of May, and Price told him that he would like to buy a small piece of land near town, and
It is true that Lewter & Beacham state in . their testimony that Mr. and Mrs. Price were to pay them, or they
The defendants in their testimony state positively that they never employed Lewter & Beacham to purchase the land for them, or to negotiate a loan for them, and never agreed to pay them anything as commissions for their services in selling them the land or for negotiating a loan for the purchase of the place. They also say that the notes and mortgages were to remain void until the money was received. Price says Lewter came to his shop and offered to sell him the forty aci’e tract.
Porter says that by-agreement between himself, Price and Lewter & Beacham, the money was not to be paid until the mortgage on the home place was satisfied and the deed delivered.
In view of the irreconcilable conflict in the testimony of Lewter & Beacham on the one hand, and that of Price and wife on the other, and the absence from the remaining evi dence, which it is unnecessary to detail here, of anything showing error in the conclusion reached by the chancellor.
If we exclude from our consideration the testimony of Lewter, as inadmissible because of the fact that he testifies in behalf' of Mrs. Lewter, and that of Price for a similar reason as to Mrs. Price, our conclusion is not changed or shaken.
Mrs. Lewter is not an assignee for value, but is the original payee of the note payable to her.
The decree is affirmed.