*1 25 J., dissеnts. Terrell, concurring. agree is bad J. that the Act be-
Davis, —I prescribes particular one Circuit cause the duties of my Judge 20 of Section of Article III. violation But ground stated concurrence the result is limited to the any perceive I only, as am unable to constitutional ob- jection to' the Act .otherwise. J., Appears concurring. Act to be in con Brown, —This only
flict,
III,
20 of
with Section
Article
but also with
11
XVI
Section 4 Art. IX of
Section
of Article
in this
State
rel. Davis,
Constitution. See
connection
ex
v.
117,
City
116
Green, 95 Fla.
So. 66.
vs.
Brown
of Lake
land,
508,
716;
61
54 So.
L.
56
Co.,
Fla.
State v. A. C. R.
617,
569,
(N. S.) 639, Bailey
47
32
R. A.
Fla.
L.
So.
vs.
VanPelt,
337,
789;
82
Fowler,
78 Fla.
So.
State v.
94 Fla.
752,
Effie Nichols, Smith Nichols, Appellants, D. S. Bodenwein, vs. Theodore Appellees. al., et Jr., Marsh, 659. So.
Opinion filed October 1932. Opinion rehearing February filed and March *2 Boone, Attorney Appellants.
Robert J. for Attorneys Cooper, Copeland Tk&rrell, <& R. for James Appellee; Juliam, Marsh, Bowen, L. & Jr.,
D. S. S. and Skutts At- torneys Dashiell; Appellee C. R. Attorneys Ap- DeJarnette, McKay, &
Miller, Dixon McKay. pellee, John G. will appellants, whom we
Davis, Commissioner . The complaint complainants, filed their hill refer to as Rnmsey, Jr., M. Marsh, Jr., Lee Bodenwein, D. S. Theodore Will Annexed of with the Gross, Luther Administrator Miller, M. Jerome Cher- Sellers, deceased, William Wilfred Chaplin, Johnston, W. A. Gil- bino, Dashiell, J. H. C. R. Rumsey, Sr., M. Kilby, Lee Edwin Chaplin, R. L. bert H. McKay Port Simpson, John G. and Alton defendants, alleged and therein refer we will whom June, the defendants on or the 16th about *3 Rumseys, Sellers, Miller, Cherbino, Bodenwein, Marsh, the Chaplin EL Gilbert Wm. and or- Johnston and syndicate ganized for the of certain lots a Beach, Number Miami Subdivision Dade Ocean Beach approximately $600,000.00; a County, consideration agreed to subdivide said lots into the said defendаnts that that such lots, and terraces and subdivision smaller streets subdivision; Port be known as Alton Commercial should copy they plat, photostatie of which is at- that used a complaint “A,” the bill of as Exhibit to make tached to plat subdivision, recognized of said but and it as sales required by approved law; as that the same was never that agents, employees or their servants and on the defendants falsely fraudulently represented July 3, 1925, or about plat,— prints of complainants the blue “ plat of the (a) To be a true and exact subdivision Commercial, giving the correct size as Alton Port known of certain lots and streets which are correct location described; hereinafter prop- upon representations that the (b) That said or one of them erty belonged to the defendants print described as Exhibit plat or blue heretofore print plat “A” blue of said was a true and correct subdivision; located Dade (c) in fact a subdivision That was ’’ County, Commercial; Florida, known Alton Port as representations upon the defendants sold to the such complainant Nichols, Smith lots in Effie certain said sub division, represented frontage which were to have total fifty facing feet East on Alton Road and West Port Avenue, plat knowing approved well that such had not provided by record, law, and filed and that there was Avenue, nor no' such street Port certain numbered ter they subdivision, races said and that knew that said representations they were false and untrue and that purpose deceiving complainаnt made for the said they upon; with the intention that be relied that the said complainant representations believed and relied damage, having knowledge falsity. to her no of their complainants was further fraudulently shown that also represented corporation there “existed a known as Inc., duly Alton Port Commercial, which incorporated Florida, under the laws” of that said had a marketable title to the the said lands encumbrance, or, were free of if there were encumbrances thereon, long-time mortgages consisted proper lot, release clauses for each and that it right had lawful sell convey same; July that on 3, 1925, no such incorporated had been Florida; that on July 14, 1925, patent Letters Secretary was issued *4 State оf the State of Florida to John McKay, G. Edwin Simpson M. Lee M. Rumsey, Jr., but that such Letters patent, charter and affidavit the Treasurer showing that cent, per ten capital of the stock of said had been were not filed and County recorded in Dade principal where the place office and of business of cor the poration located, August was 7, until 1925, and that the Treasurer’s affidavit was not Secretary filed with the August State until 7, 1925; that attempt an was made to property deed to the “Alton Port Commercial,” corpora- a July 16, Commercial, tion “Alton to Port Inc.,” a because but that the deed void was Beach, was being described as lots in Ocean Florida, they 3, subdivision, stating Number without that were in County; pursuant Miami Beach of Dade that such representаtions, relying thereon, com- said plainant Nichols, Effie Chaplin, Smith H. and Gilbert one July 3, 1925, defendants, joint purchasers, on contracts, written with “Alton into four certain entered purchase Commercial, Inc.,’’ corporation, for Port cash plan with a of said on the installment down lots being bill payment, copies attached to the of said contracts part thereof; on March Gilbert said Chaplin assigned complainant said his interest to the complainant no contracts, at which time the said had said knowledge perpetrated notice or fraud had upon her; part as a of the considera- defendants agreed tion for the said lands to construct suit- light same, com- able water and electric connections for the plete drеdge grade subdivision, in the said streets twenty bay line, from front a channel feet bulkhead fifty twenty deep, one hundred feet in width and feet completed eighteen agree- from same to months date of ment; that said contract was breached defendants improvements in that did not make the within a reas- making of contracts, time from the onable did not complete agreed time; the said channel within complainant, Effie Nichols Smith refused to make deferred payments, was induced make the that she said contracts through fraud, Alton Port that the did put property, not have title to the that it had out of its power contracts, having dissipated to fulfill said its assets in an manner, unlawful and because it breached its bill; pay- contract as shown that when the secоnd complainant ready, willing ment became due *5 comply contract, able to with her but defendants given upon mortgage the entire sub- default price purchase thereof. division for the prior incorporation alleged further that to the syndicate Alton Port of the defendants formed, contributing each of them was common fund making payment compris- cash the land initial ing alleged subdivision, and that the names of the syndicate paid members of the the amount each of them is as follows: Bodenwein.............$12,500.00
“Theodore Marsh, 12,500.00 12,500.00 12,500.00 D. S. Jr.................. Rumsey..................... Lee Wilfred Sellers.................. 25,000.00 25,000.00 William M. Miller............... Jerome Cherbino ................ Dashiell....................12,500.00 C. R. 25,000.00 J. H. Johnston.................. Chaplin Chaplin 25,000.00;” W. A. and Gilbert organized when the was stock was issued syndicate respective for the to said members amounts opposite names, aggregate thеir and that the amount thereof comprised syndicate the entire assets of and of the cor- poration, practically paid all on of it was price subdivided; of the land to' be corporation gave mortgage upon to the vendors a the land $450,000.00, secure payable installments, the sum of portion but small of which was on the note first maturing; paid only interest had been to December 16, 1925, February bill that a was filed to fore- mortgage, close the said and that a decree of final fore- July 1, 1927; had been entered closure thereon on that dur- ing the summer fall the entire subdivision was sold, approximately $400,000.00 and that in cash therefor; using moneys received that instead of so re- carrying ceived out the terms of said contracts, their wrongfully re-paying diverted to each of the de- *6 purchase said of who had contributed to fendants of expenses organization, the full amount of lands, his investment. corporation holds
It was further shown that the said representing large for the amount obligations notes and by purchasers in said sub- payments given of lots deferred complainant, Effie being division, among the notes of them Nichols; benefit or title that she has not received Smith money her paid purchased and that from the on the lots cancelled; given by her be the notes should surrendered parties the various who were designate cannot officers, and directors in the said stockholders organization times, but that at the time of its at the various McKay Treasurer, Edwin John G. was its President and Rumsey M. Simpson M. its Vice-President Lee Sec- its retary, parties composed and that same Board Directors; purchase that at the time of the prior organization of 16, 1925, “and to the actual June President, acting Jerome Oherbino was Sr., Vice-President, Rumsey, Rumsey, M. as and Lee Lee Jr., Secretary, Marsh, Jr., Treasurer, and D. S. composed Directors; parties the same Board of filing bill, Chaplin "W".A. is
that at the time of of this Kilby R. L. is A. President, Vice-President James Secretary Treasurer, Bissett is the and that same Directors;” parties compose that, part the Board as a wipe dissipate the assets of the scheme to out and Cherbino, Jerome its Alton Port then $129,000.00 President, paid the sum of as a commis- property, that said cor- sion on account insolvent, complainants poration and that offer to do' proper equity execute “releases and satisfactions July 3, refunding 1925” defendants the contracts money complainant Nichols, Effie Smith in- terest, etc. prayer
There is a for the cancellations of the said con- tracts, given by the notes Smith, Effie who filing at the time of the bill was Effie Smith Nichols, awarding complainants decree damages may all exist, shown to and in addition money paid by the sum of complainant Nichols; Effie Smith for an accounting *7 (a) moneys paid by stockholders, officers, out to etc., (b) purchase land, payment for interest and taxes, (c) paid purchase and commissions or received syndicate land; and sale of that the members be decreed to complainant Nichols, be liable to Effie Smith and that required by pay paid to lots; amounts her oh said specifically prayed for other relief therein general relief. Bumsey, Jr., M. William Miller and
Defendants Lee process Chaplin the cause A. were not served with W. complainants. A was to them motion of dismissed as by plea in Luther Gross as Administrator abatement Sellers, deceased, Annexed, with Will of Wilfred estate Bodenwein, H. John- sustained; Theodore J. defendants by 'Simpson publication M. were and Edwin served sto.n pro only appear. did Decrees confesso en- were Bodenwein, Cherbino, J. Theodore Jerome tered Johnston, Chaplin, Kilby, Bumsey, H. B. L. Lee H. Gilbert Simpson Cofnmercial, M. Alton Port Inc. Jr., Edwin McKay, C. B. Answers were John G. Dashiell and filed Marsh, D. Jr. S. testimony
The cause was referred to a Master to tаke report findings of back to the Court' his law fact. reported Bumsey, Jr.,
The Master that Lee M. William Chaplin M. Miller and W. A. were never served with process personally by publication, either and recom- them; mended a dismissal of the bill as to that Gross, defendant Luther Administrator With the Will Sellers, deceased, plea Annexed Wilfred file a abatement which was sustained evidence and the bill defendant; should be dismissed as to said improve- the covenant the vendor to make ments and the covenant of Effie Smith Nichols to dependent steps and that no land light complete install water and electric connections and grade taken; streets had been there was blanket mortgage question, mortgage on the which subdivision foreclosed; that the Alton Port question, had abandoned the subdivision is insolvent and operation, had ceased because and that of the breach complainant covenant vendor’s Effie Smith Nichols is en- titled to' have four contracts rescinded the notes given cancelled, in connection therewith and also to a re- money thereon; turn of the her with interest any the evidence repre- failed to disclose such fraudulent complainants sentations as would entitle the to rescind the *8 grounds of misrepresenta- said contracts on the fraudulent tions; “capital that a refund” or on dividend was declared August 15, 1925, eaeh of the stockholders was cent, per September 1925; on his 1, investment as of question July 3, that the contracts deed in are all dated acknowledged July of them two having July 21, 1925, the other two on dupli- and that by Commercial, cate affidavits the Treasurer Alton Port Inc., requisite capital that the amount of its stock had been Secretary paid, not filed were o'f State and with County Clerk of the Circuit Court of Dade until Au- gust 7, 1925, “original incorporators that the and directors Commercial, Inc., of Alton Port who were officers di- question at the time four rectors contracts in executed, McKay, were the defendants John G. M. Edwin Simpson Rumsey, Jr.,” Rumsey Lee M. but that him, not been and suit had been as to served dismissed against judgment can be entered personal no and that by publication Simpson he was served M. because Edwin against judgment should be entered only; personal that a judgment personal McKay. that a recommended He also Commercial, Port Alton be Cherbino and entered and the notes made be rescinded the contracts Inc., and that cancelled. in connectio'n therewith portions of the Master’s Exceptions to certain were filed by by Marsh, Jr., complainants, D. S. report severally. final decree McKay, The Court John G. by McKay exceptions to the Master’s filed sustained exceptions him. report the bill as to and dismissed defendant, Marsh, complainants of the to the said respects in all report Master’s were overruled and other approved and report ratified, confirmed the said bill to the the Court. The was dismissed as Administrator, etc., Gross, Luther C. defendants Simp- Bodenwein, Edwin M. R. Theodore son, Johnson, Chaplin, Kilby, H. Gilbert H. R. L. J. Sr., Jr., Rumsey, Lee and D. S. Marsh Court decreed that the said contracts and the notes complainant Effie Nichols executed Smith therewith, rescinded, connection cancelled and annulled complainant and that said "do have and recover of from the defendants Jerome Cherbino and Alton Port Florida sum SIX HUNDRED SIX- TWENTY-EIGHT THOUSAND DOLLARS,” TY-SIX & with interest thereon. 65/100 decree, complainants Upon appeal the final an from sustaining assigned error, exceptions have McKay report, to Master’s the dismissal of the John G. *9 following defendants, named bill as to each of sever- ally: McKay, Chaplin, C. R. H. John G. Gilbert Rumsey, Sr., Jr., D. S. Kilby, Marsh, R. L. Lee and in against judgment Marsh, Jr.,' D. S. failing enter C. R. to McKay, Dashiell, and John G. for the full amount of the
35 judgment against entered Jerome Cherbino Alton Port Commercial, Inc. object bill of the is not limited to a rescission partаkes
cancellation of the contracts and notes.
It also
bill,
nature
a creditor’s
but as a creditor’s bill it
reason,
cannot be
if
other,
maintained
none
that it
appear
complainants
no't
judg-
does
obtained
ment
law,
at
or that a suit at law instituted
them was
pending
any
defendants,
5035,
them. Sec.
Compiled
Laws, 1927;
General
B. L.
Realty
E.
Co. vs.
Mary
Co., 101
254,
William
Fla.
Under the given by Effie Smith Nichols the notes must cellation ground fraud, or, upon justified, either breach part of vendor of contract or vendors. any repeatedly representations
We have held that false falsity fact, knowledge made with material its on, party relying intent shall be thаt it acted entitles thereby avoid deceived to' contract or maintain thereon damages (Day vs. 101 Weadock, sustained. Fla. action 333, 525; Temple Estates, Inc., So. Nixon vs. Terrace 475); misrepresentation Fla. 121 So. to con- ground stitute for rescission of contract must have been (Pryor Oak Corp., an inducement thereto vs. R. C. 97 Fla. 1085), nonperformance promise of a mere that the something future, intent, in the do without fraudulent a contract, consideration for execution of will or- dinarily be its sufficient authorize rescission. Hendricks 293; Realty Stark, Corp. vs. 99 Fla. 126 So. N. L. E. Farrar, vs. 101 Fla. So. testimony reviewing we
Without will state that clearly no't been shown the finding has here approved by Chancellor, Master, which was *10 any representa- fraudulent such fails to disclose еvidence con- complainants the said to rescind entitle as would tions tracts, is erroneous. make of vendor to covenant Master found cove- contract and the improvements for called pay Nichols, dependent were of vendee Mrs.
nant payment said contracts covenants, that the first deferred July 3, Alton 1925, and that months after due six became work of instal- Commercial, Inc., had commenced Port light grading connections ling electric water and light or or con- no water streets, are streets and that there to in the contracts. in the subdivision referred nections approved the Chan- finding the Master was also This cellor. cross-assignments of appellees filed
None have necessity in therefore, are, reliеved error. "We re quiring or not the law evidence warrant whether notes, also cancellation of the contract and scission and complainants determining or not the should from whether prin maintaining the suit have been barred from Upon ciple estoppel, or because laches. breach vendors, complainants right, at vendor or had election, to ask for a cancellation of the their rescission and equity jurisdiction contract, assumes and when a Court grant purpose, Ringling full relief. John one will White, Fla. 581, 884. vs. So. See also Estates Leesburg Lyle, Bank 99 Fla. 126 So. St. vs. complainants
In the instant case the not satisfied are of the contracts and *11 prior tered into to the creation of the prior Inc., quali Commercial, time when Altоn to the Port by filing in Clerk fied to do business Florida with the Secretary Circuit Court and with State State Florida, duplicate its affidavits treasurer that not $1,000.00 capital less than stock of o’f paid money, (its par being had been in stock without val ue), consequence thereof, that in those interested enterprise joint be should held as adventurers or as promoters corporation, general of a as members of partnership (Section (4054) under the Florida statute Compiled They 1927). General Laws also' contend personal judgment should have been entered John McKay G. because he was an officer of the having corporate been in the named charter its President. purchase comprising
The of the land the Alton Port Inc., Commercial, Subdivision, through wаs effected Jerome prime Cherbino, the mover in the transaction. evidence discloses both Marsh response to tel- egrams by Cherbino, sent moneys, forwarded certain sending $25,000.00 (half says former which he himself another), and half for $12,500.00 latter telegrams each of the reads as follows: Bay “Just Purchased Another Piece of Front Ex- pect ing Quick Kjilling Subdividing to Make a and Sell- Stop A Proposition Aquarium off Similar Prop- erty Stop Only Taking in a New and if You Care to Come In for Either Twelve Thousand Five Hundred or Five Twenty If Thousand Will You Stop be Glad Have Necessary You Wish to Will Money Join be to Wire Through Your Bank Settlement Immediate Demanded in Chicago Going Will Everything Next Week Great.” parties To each of receipt these two Cherbino sent a which stated: R. Dashiell, “Reсeived of C. ($12,500) sum being Dollars, payment
Twelve Five Thousand Hundred part ownership inclusive, 32 to 39 Lots of Block price of No. Beach. 3-the total Ocean Dollars, being Hundred Thousand said payable Six Cash, and Fifty bal Hundred Thousand One Interest payments with at ance Six Semi-Annual per cent. Holding agreed that a Corn- “It is understood Capital immediately organized company will be no-par Common Stock Seventy to 80 Two shares duly organized Company has' when said shares R. Dashiell is to receive 5% said C. Capital Stock. (Signed) Jerome Cherbino Cherbino, Trustee.”
Jerome witnesses in the Both were sworn as Marsh Dashiell *12 ease, of in that he and while each them testified substance corporation, of bought in a each made it clear stock them money of Cherbinо, to that when he made remittance arrangements made with whatever Cherbino reference to property perfectly satisfactory him; be to would that he investments Cherbino and that he, had' made other with in deal, relying judgment. this was Cherbind’s sought, purport of contracts, The which 'is rescission to corporation under have been made a of laws signed Florida, “Alton Port by Cherbino, President, Rumsey, Attest: Lee M. Jerome Jr., Secretary.” question therefore arises: Are who' those contributed
money
purchase
comprising
the land
for the
the sub-
purposes
re-selling
profit,
division for the
it at a
liable
co-promoters
as
or
a corporation,
co-adventurers
to
a
in
Mrs. Nichols
contract holder for lots
subdivision
by
prior
qualification
purchased
Chеrbino
to the creation or
provided by
corporation,
law,
the manner
o'f the
for the
business,
stock in the
having
transaction of
subsequently
proportion
issued
them
to their
fund devoted
share
to the
?
general
‘This
has said: “The settled
Court
rule is promoters prior
its
contracts made
corpora
its
creation are not enforceable
or
Sumner-May
Co.
organization.”
tion after its
Hardware
ap
Scally,
al.,
vs.
to contract for a must a contract bind- ing upon In accordance with this else he himself is liable. principal, some or has been held that an rule it agent personally professes liable where he to enter unincorporated into a on behalf of an contract associa- tion, committee, or on behalf club incorporation’.” its before Phillips Hall, 635-7; & 99 Fla. I. W. Co. vs. So. Bryce Bull, Term, vs. decided at this Fla. 143 So.
Upon theory this the lower court committed no error money adjudging Cherbino liable for the amount Mrs. Nichols said contracts. We are of the opinion that it was shown that Cherbino also acted for his alleged comprising associates in the sale the lands subdivision, being part them, or a their mutual being case, That it follows *13 benefit. joint (Proctor adventurers, Hearne, therein as
interested vs. 173; 102 Fowler, 100 131 So. Willis vs. Fla. Fla. 358; Bull, joint supra), vs. So. Brice as such ad- by
venturers, they bound were all with Mrs. contracts though Nichols, Cherbino’s associates were at the un- time Nichols, nothing being to Mrs. there before known authority show that exceeded his Court to Cherbino or had thereby. power to no bind his associates See authorities 33 C. J. 872. last cited and telegrams Dashiell, copy to Marsh and which
The herein, response set out and the remittances of is cash in clearly
thereto, part Cher- indicate an intention on the bino, joint Marsh and Dashiell relation of to create the ad- subsequent in the proposed venturers scheme and the cre- ation purpose handling of a scheme, corporatiоn’s and the issuance o'f the stock cer- proportionate tificates to each them for his share capital invested, any liability total does not relieve them joint that attached to them as adventurers before cor- poration was created and authorized to transact business transcript Florida. reveals, that when the certifi- cates o'f stock were received Marsh they, received checks Dashiell, at the same time for the contributed to venture. These full amount to in the were first referred minutes of the remittances capital,” corporation as a “cash refund of their but the meeting 24, 1926, at a stockholder’s was on June minute appear changed them as to make a “dividend of so equity per would in its cent.” "Wefeel that fail mission grant sought against if relief it should refuse to those who permit juggler deals, in real estate and authorize as Cher- been, in preying upon to have to act for them bino seems perhaps trusting, though incautious, public, under cir- as shown to have existed in this ease. cumstances our conclusion that error was committed finding liability that no Chancellor attached to those as- by having of Cherbino who were sociates before the Court process personally against with served whom de- pro entered, crees confesso were or were shown the evi- to be in the same attitude with dence reference to the ven- ture Marsh and as were that the Court also' dismissing parties as to erred bill such and in not entering adjudging personаlly a decree them to be liable Complainant Mrs. to the Nichols. up assignment
We now take dealing will error phase which decree dismissed the bill *14 McKay. John G. In his answer the bill this defendant alleged incorporation that at time of the of Alton Port Commercial, Inc., President; he employed “was that was he persons development interested sale capacity suit, involved this in his as at- torney law, at to effect incorporation of Alton Port Commercial, Inc., this incorpo- that defendant became an merely rator purposes of convenience in the execution necessary papers and documents connected with the formation of the said corporation; immediately that there- after, this resigned defendаnt as President and Treasurer of said participation withdrew from all officer, either as director, stockholder or otherwise; that this party defendant was and not a any of the alleged in transactions bill complaint o'f nothing knows thereof; any that his sole connection with ’’ of the other defendants in this cause is herein set out. 5983 (4050) Compiled Section 1927, pro- General Laws any corporation general if vides that under the created law any complying shall transact business before with the re- quirements enumerated, therein its officers and directors personally for all of “shall be liable debts general partnership.” as if were members of Copies patent of the Letters of incorporation and articles admitted in these apрears were evidence from incorporation proposed signed McKay articles of together 26, 1925, it, on June written notice application July 6,1925, be would made Letters Alton Port incorporating was filed patent Secretary Florida, of State 'State with the July 16, issued on 1925. It is patent was also that Letters Eumsey, M. duplicate Lee affidavits made shown Circuit Court the Clerk and with filed with Jr., day of August, on the 7th Secretary of State declared that stockholders should Formerly, statute *15 42 the before contracted corporate debts liable
personally business, to transact qualified statute under the existed, Court this it then the statute as under simply “but penal nor was neither remedial statute that the acting who, obligations persons contractual continues the yet corporation not of a through officers agents, the their con business, on their were liable to authorized transact under the to business had not intended do as if tracts forbidding the charter;” “the effect statute any transacting business until re corporation from complied con with is to quirements mentioned are therein liability incorporators and stockholders tinue in voluntary the nature association individuals Truitt, 71 70 So. co-partnership.” vs. Fla. Winfield Works, Fla. Cook vs. J. I. Case Plow In Court said: So. to last this court cases “From the first consistently obligation held of stockholders
has this statute to be contractual.” under McKay any proof at time There an absence with and his a contractual relation Cherbino as- sustained venture, an proposed he officer sociates in the was corporation. was at time the deeded appear any associates, that Cherbino oh his does personally process, served who were were interested way any in in Alton Port at the time it incorporated. For us to come to the conclusion that McKay, prior patent, to the issuance Letters knew that proposed the name of the been used in mak- ing question, contracts we would such have base upon conjecture. nothing conclusion There is tran- script upon grounded. which it could Here we have persons case where contracts were made one of several joint engaged as adventurers the benefit of all under a being McKay, name which about that time was used Simpson Rumsey, Jr., corpora of a formation bearing name, tion the same and for which the issued State patent course, showing Letters no due and there is McKay, Simpson Rumsey, Jr., that such had notice *16 being name was joint used such true adventurers. It is purporting convey a deed property to in said described contracts was Commercial,” executed to “Alton Port corporation, mortgage and a executed for and on behalf corporation by of the officers whose names do not corre spond with of designated the names as those officers in the given charter of the corporation, defendant in return was security part purchase price for a prop of the erty, and that deed, payments *17 is decree of the lower Court reversed and the cause
is enter remanded with directions to a decree accordance expressed. herein with the views having in this cause con- Curiam . The record Per by opinion Court, foregoing prepared sidered the and the Chapter Session, adopted Extra under Acts o'f by opinion, considered, it is the Court as its ordered and by adjudged Court that decree of the Court be the lower hereby and the same reversed the cause is remanded with directions to enter a decree in accordance the expressed. views herein Davis, J.J., C.J.
Buford, Terrell Whitfield, concur. Rehearing.
On Judge agree Circuit are unable to with the Bird, . We appellees contention of counsel earnest Marsh and signed Dashiell inasmuch the contract was that as the parties corporate accepted in a name and contract the corpora appellant, that them a she dealt with defacto deny corporate First estopped tion she is existence. public State, expressed in against policy it is of this statute, for individuals to business as do complying corporation laws; without statute with the imposes penalty liability upon in partnership. eorporators, doing, directors officers for so and the so contracts entered into not either are enforceable corporation. Sumner-May Hardware Co. vs. Scally, Rep. et al. 66 Fla. Sou. Second: There showing any is no appellant knowledge that pretended non-existence the time she at money any into' entered her the contract and or did appellees act which upon estoppel acted worked аn against her. apparent
It is from appellees, the record that Cherbino, Dashiell, Marsh, others, purchased the real estate de- scribed in the purpose bill for the of subdividing and re- selling, they and that each original contributed to the pur- price, payment chase or the first property; any tangible before effort was to incorporate, made practically sold They entire tract. incorpo- not rated at the time sale of the same and at ap- the time pellant paid money; her appellees received the profits joint from such equal adventure to one hundred cent, per capital invested, within sixty less than days; have retained the fruits of joint restored, adventure or attempted to restore, the *18 money by appellant. principle No equity of is more firmly established than agent that “when an acts for his principal principal accepts and the agent’s the fruits of the efforts, principal the must be deemed to adopted have the employed may he not,' though methods and even innocent, receive benefits at responsi- and the same time disclaim ’’ bility they acquired. which for means were Chase
46 359; Love v. Brown Sullivan, 202, Sou. Rep.
v. Fla. Rep. 144. 1373, 131 Sou. Development Co., Fla. others, pur- Dashiell, Marsh, and Appellees Cherbino, July, day of June, 1625; in the 3rd chased on four pretending sold they, to act her appellant question retained lots received mo'ney. 6th incorporate until the No efforts were made to day July, 1925, application for letters when notice given. patent company to do busi- was authorized meantime, day August, 7th In the ness on the practically purchased re- the whole tract of land had been sold, August appellees, day of the named and on the 15th joint others, and the received benefits such adventure cent, equal per capital to o'ne hundred invested. moneys joint acquired through enterprise These corporation. not appellees is axiomatic that since the named did speak silent, when their them to be interests commanded speak equity cannot now heard to when and con- require quiet. science them be herein, original For opin- reasons set fo’rth opinion ease, original ion to. filed this such is adhered J.J., O.J. Davis, Wi-iitfield, Buford, Terrell concur. Reheаring.
On Petition Further have Judge again Circuit reconsidered this Bird, . We petition appellees, on the of C. R. one cause rehearing opinion day on to the filed the 18th o'f opinion rehearing October filed on the day February, opinion 11th and are of that the legal opinions cause a fair two filed this reach de- termination of this cause. opinion day
We delete from the filed on 11th *19 para- February, 1933, “incorporators” in first the word graph opinion. of said appears appellants from the record that the Dashiell joint Marsh, associates, adventure, in the their day dated, July,
the 3rd when the contract is day July, 1925, on the 27th is when it contended money actually paid, doing joint as was business ad- corporation. appellees, venturers and not as The named corporation associates, and their did not over take known as Alton-Port until the 15th day August, 1925, corporation which was formed and patent McKay, M. letters issued to John Gr. Edward Simpson Ramsey, McKay Jr., and Lee M. said John Gr. Treasurer, named as M. Simp- President Edward Jr., son is as Vice-President, Ramsey, named Lee M. Secretary, each are named as directors. These parties turned appellees over to the said day and their of August, 1925, associates on the 15th at the time the money contract was entered into Or paid, parties money whom to and who appear entered into the contract have no interest in the process then in of formation. We therefore again opinion petition adhere our former and the rehearing is denied.
Mоtion for recall of Mandate and Petition a further rehearing denied.
Davis, C.J. and Whitfield, J.J., Terrell Buford, concur. rel., ex Relator, vs. J. A. Florida,
State Molter, Sam of Polk County, Respondent. Sheriff Florida, Johnson,
Opinion filed October with rescission and cancellation notes money. They given part want a also payment first return of the initial or made on each of the personal that a judgment contracts. their contention have been entered Marsh and should both whom bill, before the Court and answered theory on the that the contract with Mrs. Nichols en-
Notes
notes deferred mortgage 16, were dated June but which deed mortgage acknowledged were August not until The minutes July 31, McKay show that resigned as President and also of as director asked to be subscription, reliеved his resolu complying request tion with his adopted by .was then corporation. presume We cannot that the officers “Alton Port Com- mercial, Inc.,” at the time of the issuance the Letters patent were associates of who those in interested making question. the contracts in It was feasible fol joint adventurers to take over formed by McKay, Simpson, Rumsey, Jr., and then have the conveying corporation. delivered to the deed complainants on the to burden was shoV contractual The McKay Cherbino, between Marsh and obligation not and this burden was sustained the com- plainants. necessary proof to for the show It that all of the was being joint in persons named the bill interested in the necessary proof The lack co-adventurers. venture, were justify equity denying respect a Court of in will not in that clearly shown to have against those prayed for as relief venture. jointly interested power of a Court that the be in mind must borne It by any fact or grant is relief not circumscribed equity to form has a discretion The Court bro'ad technical rule. adapt to circum the relief ing decrees, in order to its object of primary a decree particular cases. stances equity procedure is justice, reach ends Generally, enough accomplish this result. elastic usually may equity some defendants granted against relief judgment must be The rule that a denied as to others. joint charged with a lia all defendants rendered law, application in bility, none, in actions at has no suits 660-666; J. R. C. L. 557. equity. 21 C. See properly as to follows dismissed bill McKay.