63 Fla. 564 | Fla. | 1912
On the 2nd of August, 1909, Rufus E. Rose, Richard J. Bolles and the Florida State Drainage Company filed a cross-bill in the original suit of the United States Sugar Company against themselves and the Henderson heirs. The substance of this cross-bill so far as it is necessary to be stated here, is as follows: After setting up the proceedings upon the original bill, the demurrers and answers thereto of the respective defendants therein, the cross-bill alleges that on the 2nd of October, 1908, the Henderson heirs, being seized in fee of the unsurveyed lands, the subject of this litigation, situated in Lee and DeSoto counties, Florida, of a total acreage of 98,276.83 acres, entered into an agreement with Rufus E. Rose and his associates for the sale of the same, which agreement was signed and sealed by the said parties by which the Henderson heirs, viz: John W. Henderson and Sarah E. Henderson, his wife, Jennie
The cross-bill further alleges that it was covenanted and agreed by the Henderson heirs to furnish an abstract of title to said lands together with'a valid and legally executed deed sufficient to convey a valid and unencumbered title to the above described lands, or the proportionate part that could be conveyed by valid and unencumbered title, and deposit said deed in escrow in the Barnett National Bank of Jacksonville, Florida; and that the purchaser, Rufus E. Rose, would within 60 days after notice to his attorney W. S. Jennings, of the deposit of said deed in escrow, pay one-half of the purchase price, to-wit, the sum of $24,500.00 in addition to the sum of $500.00 which was duly páid to the Henderson heirs at and before the execution and delivery of said agreement, and that the balance of the purchase price would be j>aid one year from the date said deed should be placed in escrow; provided that in the event the said heirs of John A. Henderson at any time before
EXHIBIT “B”
Articles of Agreement.
. THIS INDENTUEE, Made and entered into this the 2nd day of October, A. D. 1908, between John W. Henderson, and Sarah E. Henderson, his wife, A. A. Murphree and Jennie H. Murphree, his wife, of the County of Leon, State of Florida, and Geo. E. Waldo and Flora A. Waldo, his wife, of the City of New York, State of New York, the said John W. Henderson, Jennie H. Murphree and Flora A. Waldo, being the children and only heirs at law of the late John A. Henderson, deceased, late of said Leon County, who departed this life intestate on the 9th day of August, A. D. 1904, parties of the first part, and E. E. Eose and his associates of the county of Leon, State of Florida, party of the second part:
WITNESSETH: That Whereas, the said party of the second part, having heretofore submitted a proposition on behalf of himself and associates for the purchase of certain lands situated in the counties of DeSoto and Lee, in the State of Florida, being the lands described and embraced in deed No. 15898, executed by the
That the parties of the first part were to execute a good and sufficient deed conveying a clear and unencumbered title to the above described lands unto the party of the second part, his associates or order for and in consideration of the sum of Fifty Thousand ($50,-000.00) Dollars, to be paid as follows:
Twenty-five Thousand ($25,000.00) Dollars cash upon delivery of a good and sufficient deed conveying a valid and unencumbered title to said lands, as aforesaid, which deed to be placed in escrow, not to be delivered until the remainder of the purchase money, namely: Twenty-five Thousand ($25,000.00) Dollars should be paid in or before one (1) year from date of said deed, together with interest at the rate of Six per cent (6%) per annum from the date of said deed to the date of the payment, which proposition having been duly considered and being-found acceptable t'o the parties of the first part, as a general proposition, subject to certain modifications to be hereinafter more particularly set forth,
IT IS THEREFORE, mutually covenanted and agreed by the parties hereto as follows:
FIRST — The parties of the first part for and in consideration of the sum of One ($1.00) Dollar to them in hand paid, by the said party of the second part, the receipt whereof is hereby acknowledged, does hereby covenant and agree to sell, bargain, and convey, and by these presents does hereby covenant and agree to bar
SECOND — The remainder or balance of said purchase money, being Twenty-five Thousand ($25,000.00) Dollars, or the proportionate part thereof that the parties of the first part shall be entitled to as the balance of the purchase money of the lands that they shall find themselves in position to convey by a valid and unencumbered title, in conformity with this agreement, at the end of one year after the payment of the first Twenty-five Thousand ($25,000.00) Dollars, or as soon thereafter as a final determination shall be had of any litigation that may be instituted by the parties of the first part or others, relaing to claims against or the' title of said lands.
THIRD — It is mutually understood and it is hereby covenanted and agreed on behalf of the parties of the first part that should they find themselves not in position to convey by a valid and unencumbered title any or all the lands hereinbefore described, that then, in that event, such part or all of the said lands as the parties of the
FOURTH — The party of the second part, on behalf of himself and his associates, hereby covenants and agrees to accept the. proposition as above set forth, with its modifications and exceptions, and to deposit With the BARNETT NATIONAL BANK of Jacksonville, Florida, upon the execution of this agreement, the sum of Five Hundred ($500.00) Dollars, and the further sum of Twenty-four Thousand Five Hundred ($21,500.00) Dollars upon the furnishing of an abstract of title to such lands or such portion thereof as the parties of the first part find themselves in position to convey with a valid and unencumbered title as above provided, together with a valid and legally executed deed sufficient to convey such valid and unencumbered title to the party of the second part and his associates to said above described lands, or the proportionate part thereof to which a valid and unencumbered title can be conveyed; the said deed to be deposited in escrow with said BARNETT NATIONAL Bank of Jacksonville, Florida, and to be delivered to the party of the second part and his associates upon the final payment to the parties of the first part of the balance of the purchase money that shall be.
PROVIDED,, That said deposit of Twenty-four Thousand Five Hundred ($24,500.00) Dollars may be made by the party of the second part at any time within Sixty (60) days after notice to W. S. Jennings, Attorney for the parties of the second part, of the deposit of said deed in escrow conveying such valid and unencumbered title to said lands or the proportionate part thereof as the parties of the first part find themselves in a position to convey. The full amount of Twenty-five Thousand ($25,000.00) Dollars so deposited by the parties of the second part to be thereupon at once paid over by said BARNETT NATIONAL BANK of Jacksonville, Florida, to the party of the first part.
FIFTH — It being mutually understood, covenanted and agreed by the parties hereto that the proportionate acreage above set forth and referred to shall mean the ascertainment of the total acreage described and conveyed by the deed executed by the Trustees of the Internal Improvement Fund to the heirs of John A. Henderson, deceased, aforesaid, and the Fifty Thousand ($50,000.00) Dollars, total purchase price agreed upon, together with the amount per acre that such purchase price bears to the total acreage, and upon this basis any acreage deducted from the total that the proportionate amount for said deficiency in acreage shall be deducted from the total purchase money and that the total purchase money shall be the amount represented by the total acreage that the parties of the first part find themselves
SIXTH — It is hereby further agreed that the parties of the second part shall take the lands to be conveyed to them as aforesaid subject to all taxes and assessments of the year 1908 and thereafter; the parties of the first part to have the right to pay such taxes and assessments and to add the sum to the purchase price at the option.
SEVENTH — It is hereby further agreed that the amount of the drainage taxes for the year 1907 on said lands so to be conveyed by the parties of the first part, may be deducted from the final payment and remain in escrow on deposit in BARNETT NATIONAL BANK of Jacksonville, until final determination of the drainage suit now pending, and if drainage taxes shall be held ■ void, then said amount so held in escrow by BARNETT NATIONAL. BANK of, Jacksonville, Florida, shall be paid over to. the parties of the first part; and if such drainage taxes of 1907 shall be held valid, then in that event and case, the said amount shall be repaid by the BARNETT NATIONAL BANK of Jacksonville, Florida, to the party of the second part.
EIGHTH — It is further hereby agreed that if the parties of the second part shall fail to carry out the terms of this agreement that said sum of Five Hundred (1500.00) Dollars so deposited shall at the option of the parties of the first part be.paid to the parties of the first part by said depositaries, as liquidated damages, and this contract shall thereupon be at an end.
NINTH — It is further mutually covenanted and agreed between the parties hereto that these articles of agreement shall be binding upon the successors, administrators and executors of the parties hereto.
Executed in triplicate.
Signed, sealed and delivered in presence of:
WITNESSES:
Day J. Apte.
R. W. Apte.
John W. Henderson (SEAL)
Sarah E. Henderson (SEAL)
A. A. Murphree (SEAL)
Jennie H. Murphree (SEAL)
George E. Waldo (SEAL)
Flora A. Waldo (SEAL)
By G. E. Waldo, Agt. (SEAL)
Rufus E. Rose (SEAL)
Individually and for Associates
.......................................................................................(SEAL)
................................................................................(SEAL)
..................................'.................................................(SEAL)
................................................................................(SEAL)
The cross-bill then alleges the transfer and assignment for a valuable consideration by Rose of all his interest in said lands to R. S. Bolles; that Bolles by deed transferred and assigned for a valuable consideration all his interest in the contract of the Henderson heirs and the lands therein described to the Florida State Drainage Land Company, a corporation duly organized and existing under the laws of the State of Colorado, which has been duly licensed and qualified to do business within the State of Florida. It is alleged that these transfers are all duly recorded.
The cross-bill alleges that the Henderson heirs found
The cross-bill prays that the claim of the United States Sugar Company may be adjudged null and void, and for specific performance of the contract by the Henderson heirs; for relief as to any part or portion of said lands, and for general relief. Attached to the cross-bill as parts thereof are the transfers by Rose to Bolles, and by the latter to the Florida State Drhinage Land Company.
On the 13th of August, 1909, John W.Henderson and Sarah E. Henderson, his wife, Jennie H. Murphree and Albert A. Murphree, her husband, and Flora A.' Waldo and George E. Waldo, her husband, referred to in the opinion as the Henderson heirs, filed a demurrer to the cross-bill containing in substance the following grounds:
1. There is no equity in the cross-bill.
2. That it appears from the face of the contract, specific performance of which is sought these defendants reserved the discretion to determine for themselves when they might be in a position to convey by valid and unencumbered title any or all of the lands therein described, and it is not shown that defendants have determined they are in a position to make such conveyance.
3. That it does not appear from the cross-bill that any real or apparent encumbrance or cloud, existing when the contract was made has been removed, or that they have a better title or right than at said time.
4. It appears from the cross-bill that since said alleged contract was made, the complainant in the original bill has set up a claim to said lands and by said bill is seeking to compel defendants to convey said lands, under an alleged prior contract, superior in equity to that of cross-complainants, and that pending said
5. That • this court will not control the discretion reserved by defendants in the alleged contract with them, and compel them to execute a deed with warranty against „ their consent.
6. That the matters set up in the cross-bill are not responsive to the original bill against cross-complainants, but are matters proper only to an original bill.
7. That Rose and Bolles have no interest in the matters in controversy, and are not proper parties.
8. That the cross-bill is multifarious.
9. That the contract set up in the cross-bill is invalid.
10. It appears from the cross-bill that the contract set up therein is not executed and acknowledged by the defendants Flora A. Waldo and Jennie H. Murphree as required by the laws of Florida, and is not binding on them.
The demurrer of the United States Sugar Company need not be noticed in this connection.
On the 11th day of October, 1909, the cross-complainants filed an amendment to their cross-bill, alleging in substance, that on the 19 th of August, 1909, the defendants Jennie H. Murphree and Albert A. Murphree, her husband, appeared before a Notary Public at Gaines-ville, Florida, and duly acknowledged the execution of the contract made with Rufus E. Rose, dated October 2nd, 1908, and that Jennie H. Murphree, upon-a separate and private examination, which separate and apart from her husband acknowledged to said notary, that she made herself a party to and joined in the execution of the
On the 15th of November, 1909, the Henderson heirs filed their joint and several answer to the cross-bill as
The answer admits that the written instrument aforesaid provided that these defendants should furnish an abstract of title to said lands and execute and deposit in escrow a full warranty deed to said lands, or such parts thereof as defendants found themselves in a position to convey a valid and unencumbered title to, and that payment should be made as set out in the cross-bill, but they aver that the duty to make such abstract has not by the terms of said instrument in writing devolved on defendants for the reason that thby have not since the signing of said instrument found themselves in a position to
In their answer to the amendment to the cross-bill, the defendants Albert A. Murphree and Jennie H. Murphree say, that they deny that before a notary public on the 19th of August, 1909, they acknowledged that they executed the writing dated October 2nd, 1908> for the uses, purposes and consideration therein expressed; and the defendant Jennie H. Murphree denies that, she was examined by said notary public touching her execution of’said paper, and denies that she acknowledged before the said notary the execution of said paper in manner and form as set out in said amended paragraph and in the certificate afterwards made by the said notary; and alleges that the said certificate so made by the notary is false and fraudulent and the recitals thereof are not true in substance or fact. The answer alleges that if the facts alleged are true, it appears that Jennie H. Murphree was examined only as to the execution of one of the three triplicate original papers, and that such examination was made and her acknowledgment taken and certified long after the filing of the original cross-bill; that prior to such examination and acknowledgment said instrument had no force or effect as the contract of a married woman defendant, and that if said examination and acknowledgment are effective for any purpose, said instrument became the contract of said Jennie H. Murphree on August 19th, 1909, and had no existence when the cross-bill was filed. These defendants claim the same benefit of this special matter as if they had demurred to said cross-bill as amended.
The defendant George E. Waldo says that neither on the 2nd of October, 1908, nor prior nor since, nor at any
The answer further alleges that there has been no change in the title of defendants since the written instrument referred to was signed; that when it was signed it was understood among all parties there was an outstanding unadjusted' claim to said land arising out of the contract between Dunne and Kreamer of one part, and John A. Henderson of the other, upon which some money had been paid to John A. Henderson, and that it was well understood that these defendants would not execute a deed with full warranty until said claim was adjusted and removed, and with this view the written instrument was signed; that the United States Sugar Company is now asserting in this clause a claim to said lands, and that these defendants will abide the judgment of this Honorable Court thereon, rather than the opinion of cross-complainants.
The answer further alleges that though the cross-complainants may be willing to pay for said lands, and except the deed of these defendants fully warranting the title to same, these defendants feel that they ar not in a
The answer alleges that prior to the signing of the said instrument in writing, and during the negotiations that led up to the same, these defendants gave Rufus E. Rose and his attorney, such information as they had respecting the claims to Dunne and Kreamer, which was then regarded as a cloud or encumbrance on the title, against which these defendants were unwilling to give a warranty, and this occasioned the provision in the written instrument, “if the heirs of John. A. Henderson, deceased, should find themselves not in a position to convey by a valid and unencumbered title any or all of said lands, that then in that, event such part or all of the said lands as the said Henderson heirs should be unable to so convey should be excepted and reserved from the operation of said contract.”
The answer denies that on the 2nd of October, 1908, when defendants signed the written -instrument of that date, they treated and recognized as forfeited, rescinded and terminated, the contract entered into by John A. Henderson with Dunne and Kreamer, but aver that it
Replication was filed to this answer, and the cause was referred to a master to take and report the testimony — upon the issues made on both the original and cross-bill. The testimony was taken and filed, and the causes came on for final hearing before the Circuit Judge. The relief prayed for in both the original and cross-bill was denied, and each of said causes was dismissed. An appeal from the decree was taken by the complainants in the cross-bill, and they have filed here fifty-seven assignments of error, among them, that the court erred in refusing the relief prayed for in the cross-bill. The larger part of these assignments are based on rulings relating to the admissibility of testimony. We find no occasion to refer to them specifically as the material facts are all shown by undisputed testimony. The Henderson heirs have filed no cross assignments of error upon the ruling of the Circuit Judge overruling their demurrer to the cross-bill.
The main question presented is whether the instrument in writing called an indenture dated the 2nd of October, 1908, between John W. Henderson and Sarah E. Henderson, his wife, A. A. Miirphree and Jennie H Murphree, his wife, George E. Waldo and Flora A. Waldo, his wife — the said John W. Henderson, Jennie H. Murphree and Flora A. Waldo being the children and only heirs
Section 2594 General Statutes of 1906, is as follows: “Coverture shall not prevent a decree against husband and wife to specifically perform their written agreement to sell and convey the separate property of the wife, or to relinquish her right of dower in the property of the husband, bnt no agreement for the sale or conveyance of her real property or for relinquishment of dower, shall be specifically enforced unless it be executed and acknowledged in the form prescribed for conveyance of her real property, and for relinquishment of dower.”
Section 2462 General Statutes, provides that “to render such conveyance, mortgage or relinquishment whether of separate estate or of dower effectual to pass a married woman’g estate or right, she must acknowledge, before some officer authorized to take acknowledgments of deeds, separately and apart from her husband, that she executed the same freely and voluntarily, and without compulsion, constraint, apprehension or fear of or from her husband, and the officer’s certificate shall set forth all the foregoing requirements.”
It is apparent from an inspection of the contract that it was not acknowledged before an officer as provided in the foregoing sections by any one of the married women, ' at the time the cross-bill was filed. It was acknowledged by Mrs. Murphree after the cross-bill was filed, which fact is stated in an amendment to the cross-bill, and which we will consider later. The contract was then only executed by John W. Henderson, one of the three
In the case of Knox v. Spratt, 23 Fla. 64, 6 South, Rep. 924, this court said: “It seems to be now settled that the enforcement of a specific execution of a contract is not a matter of right in either party, but a matter of sound reasonable discretion in the court. Story’s Eq. Jur., Sec. 742; Blackwelder vs. Lovelace, 21 Ala. 371. And the court uniformly refuses to decree a specific performance except in cases where such decree would be strictly equitable. The doctrine that in case the vendor is unable to comply with the contract by reason of not having a legal title to all the land sold, yet that the vendee is entitled to a specific performance of the contract for such as lies in the power of the vendor to convey with compensation for the residue, is undoubted. ■This principle, however, is qualified in its operation and cannot be invoked by a purchaser who at the time of the ■making the contract had notice of the fact that the vendor had a limited interest in the land. See White & Tudor’s Leading Cases, p. 1071, Yol. 2, Pt. 2, and cases there cited.”
It is perfectly evident that in the instant case Rose and his associates at the time the contract was signed, knew exactly what the interest of each of the Henderson heirs was. in the lands described therein. It is perfectly evident that under the statutes we have quoted this so-called indenture or contract was not when the cross-bill was filed of any legal force as to Mrs. John W. Henderson, Mrs. Murphree or Mrs. Waldo; but it is contended by the Florida State Drainage Company that the contract was then and is now binding in law on John W. Henderson,
In the case of Lewis v. Fox, 122 Cal. 244, 54 Pac. Rep. 823, it was held that where an original cross-complainant failed to show a cause of action, it can not be supplied by a supplemental cross-complaint showing a cause of
A. L. Smith, L. J. On the facts before us I am of opinion that a case for specific performance has not been made out against the two defendants or against either of them. That being so, the injunctions fails. Appeal allowed.” Fry on Specific Performance (5th ed.) §823; Castle v. Wilkinson, supra. In the United States the following cases are in line with Lumley v. Ravenscroft, viz: Olsen v. Lovell, 91 Cal. 506, 27 Pac. Rep. 765; Jackson v. Torrence, 83 Cal. 521, 23 Pac. Rep. 695. The case of Tillery v. Land, 136 N. C. 537, 48 S. E. Rep. 834, is an interesting one. It was a suit brought by L. F. Tillery against E. M. Land, John H. Taylor, et al., for the
It is contended by the appellants, The Florida State Drainage Company et al., that the cases of Clarke v. Reins, 12 Graft. (Va.) 98, and Meek v. Walthall, 20 Ark. 648, sustains the position that they are entitled to a conveyance from John W. Henderson and wife, and from Mrs. Murphree and her husband — admitting that there can under the circumstances be no decree against Mrs. Waldo and her husband.
In the case of Clarke v. Reins, supra, the principle of law applied is thus stated: “The wife being one of three joint owners of the land, and they and the husband having united in the sale, though the husband and wife will not be compelled to execute the contract on their part, the other two joint owners will be compelled to convey their undivided interests upon the payment by the vendee of their shares of the purchase money.” The majority opinion of the court was written by the eminent Judge Daniel, and an examination shows that while he relied on English decisions he does not recognize the distinction which is recognized by the English Court between the doctrine of Mortlock v. Butler, supra, and Lumley v. Ravenscroft, supra. He seems to be unaware of it, and bases his decision on the former case, and other like English cases. But Judge Allen, the President of the Court, in a quasi-concurring opinion, did recognize the principle that the contract was an entire one and should only be enforced so far as the vendee was concerned, as an entirety. Judge Samuels, another member of the court did not agree to the opinion.
In the case of Meek v. Walthall, supra, the principle which the court adopted and applied, is thus enounced:
The case of Goring v. Nash, 3 Atk. 186 is referred to as being cited by appellant. This was a case decided by Lord Hardwicke, involving marriage settlement articles, and Lord Hardwicke said: “There is no instance of decreeing a partial performance of articles, the court may decree all or none.” Again he said: “Nobody can tell what it is that parties who are dead have laid the greatest weight upon, in coming to agreements, and therefore it would be attended with bad consequences if agreements were to be split and one part to be decreed and not another.” The Arkansas court held that this case did not apply to the' case before them. The general doctrines in England with reference to the enforcement of joint contracts for the sale or lease of land, is not referred to and seems to have been unknown to the court. See the general discussion of this subject in White & Tudor’s Leading Cases in Equity, Vol. 2, part 2, pp. 1069 to 1072 inclusive.
While negotiations were pending between Capt. R. E. Rose and John W. Henderson which resulted in the contract sought to be enforced, the following letter was written by John W. Henderson to R. E. Rose;
“John W. Henderson,
Attorney-at-Law,
Tallahassee, Florida.
Tallahassee, Fla., Aug. 10th, 1908
R. E. Rose, Esq.,
Tallahassee, Florida.
Dear Sir:
■ I have your letter of the 31st ult. containing your offer of $50,000.00 for the Everglade lands owned by my
Personally I would be willing to. accept this price for these lands and upon the terms as stated in your letter— $25,000 in cash and the balance in one year with six per cent interest. I think that I am further authorized to say that Mrs. Murphree, one of my sisters, would • be satisfied with this offer. Neither of us, however, can accept your proposition without the concurrence of all interested. If you are in a position to hold this offer open for a few days, and until we can confer with Mrs. Waldo, I will then be able to give you a final answer. I shall advise that your offer be accepted.
With regards, I am
Yours truly,
JOHN W. HENDERSON.”
This letter shows conclusively that John W. Henderson was not disposed to make a Contract to sell his interest separate from that of his sisters. There is nothing in the contract of 2nd of October, 1908, between the Henderson heirs and Oapt. Rose which indicates such a purpose. It does not appear that John W. Henderson or either of his sisters were guilty of any fraud, misrepresentation or concealment in the making of said contract. It seems to us, therefore, the weight of reason and authority is against the specific enforcement of said contract against John W. Henderson alone, or against him and Mr. and Mrs. Murphree to the exclusion of Mr. and Mrs. Waldo. The contract was for the sale of the entire interest of the three Henderson heirs, and we do not think a court of equity has any authority to enforce a contract different from the one the parties
. In this connection it is proper and just to say that the charge of concealment and fraud made in the brief of the Henderson heirs against E. E. Eose and his associates N. B. Broward and W. S. Jennings in the making of this contract, is in our opinion without foundation. It is charged in the answer of A. A. Murphree and wife that there was fraud in securing the execution and acknowledgment of the contract by them. No fraud is shown in that connection. It is asserted that Eose, Broward and Jennings knew at the time the contract was made that a contract had been made with Bolles by the Internal Improvement Board for the drainage of the Everglade lands, near the lands of the Henderson heirs, which greatly enhanced the value of these, lands and that they concealed this fact from the Henderson heirs. This charge is not supported by proof. The contract was made with Bolles subsequent to the agreement with the Henderson heirs. Every intelligent person in Florida knew, or ought to have known that four years before this contract was made Governor Broward had been elected Governor on a platform pledging his administration to the drainage of the Everglade lands. He had flooded the State with documents showing the feasibility of the drainage project, and with statements of their great value when drained. Against powerful opposition to his scheme he was elected Governor. The Legislature which met soon after his inauguration took up his scheme and passed additional laws empowering and authorizing the Trustees of the Internal Improvement Fund, of which he was ex-officio a member, to enter upon the project. They were given all necessary power to contract for drainage,
There is a contention by the appellants that Mrs. Henderson, Mrs. Murphree and Mrs. Waldo are estopped from making the defense that the agreement with Rose and associates was not properly acknowledged 'by them by the terms of their sworn answer to the original bill, because as it is contended, they admitted in their said answer that they executed said agreement with Rose and that means that they properly acknowledged it. If the doctrine of estoppel as thus invoked could be applied to married women, an examination of their answer shows that the only admission they made was that they executed the agreement with Rose as appears by reference to said agreement made a part of their answer, and it appears by the said agreement that it was not properly acknowl
We have dealt with the principal and controlling questions presented by the record, and think that the Circuit Judge did not err in dismissing the cross-bill; but in affirming his decree we do so without prejudice to any suit at law for damages which appellants may have against such of the parties to the contract with Rose and his associates dated October 2nd, 1908, as were legally competent to contract.