Opinion
February 21, 1950. Rehearing Denied March 16, 1950.
Appeal from the Circuit Court, Dade County, Stanley Milledge, J.
Anderson Nadeau, Miami, for appellant.
J.M. McCaskill, Miami, for appellee.
This appeal is from a final decree determining that a joint venture existed between the parties to this suit and from a prior order denying appellant's (defendant below) motion to dismiss. The record shows that the appellee, hereafter referred to as the plaintiff, brought an action to declare a trust, based on the theory of joint venture by reason of an oral agreement entered into by the parties in January of 1937, concerning the purchase and resale of certain real estate in Miami, Florida. We must look to a letter written January 20, 1937, by the plaintiff to the defendant purporting to confirm an oral agreement made that morning, for the terms and conditions of the undertaking. The letter describes the property to be purchased and contains the following recital: "You [the defendant] are to advance the cash payments and the property then is to be conveyed to you subject to the indebtedness but without obligation personally on the notes or mortgages. * * * When the property is sold you are first to receive all the money which you may advance on the property and the net profits are to be divided equally between you and me. * * * As I told you, I will do all the work, see that the title is marketable. * * * and advise you when I think the property should be sold." (Italics supplied.)
The plaintiff alleges that the property was purchased pursuant to this agreement and that later additional real estate was purchased subject to the same terms and conditions. There was subsequently executed between plaintiff as lessee, and defendant, as lessor, a ninety-nine year lease of one of the parcels of real estate described as the Flagler Street property, providing for an annual rental and an option to purchase. This lease contained a full general warranty of title and a covenant of quiet enjoyment by the lessor. It was later rescinded by mutual consent after the plaintiff had defaulted in the payment of taxes and his second annual rental installment. The plaintiff in a letter attached to his bill of complaint refers to this lease by saying: "* * * the transactions between you and me later which probably removed the Flagler Street lots from the profit sharing agreement. It is, therefore, primarily regarding the other two of the Southwest First Street lots that I write you." (Italics supplied.)
The bill further alleges that the plaintiff, for the purpose of considering with the defendant the advisability of selling the real estate and dividing the profits therefrom, attempted to establish contact by letter with the defendant and received in reply a letter from her attorney denying that plaintiff had any interest in the property described or in any property owned by the defendant. The plaintiff asserts that the relief he is seeking is exactly what the contract provides, namely one-half of the net profits after all advances have been returned to the parties.
To this bill of complaint the defendant filed a motion to dismiss, setting out, among other grounds, the fact that the plaintiff has an adequate remedy at law, and failure of the bill to allege grounds sufficient for equitable relief. This motion was denied. The order denying the motion to dismiss is assigned as error on this appeal. The case was referred to a master who found that a joint venture existed between the parties and that by reason thereof the defendant held title to the property as trustee for herself and for the plaintiff. He found that the subsequently executed ninety-nine year lease did not remove the Flagler Street property from the profit-sharing agreement, and he recommended a sale of the property, an equal division of the net profits, and assessment of the costs equally between the parties. The chancellor adopted the findings of the master and followed his recommendation, except that he assessed all costs against the defendant. The final decree provided for the sale of the First Street property and that all advances by the parties be repaid from the proceeds of this sale. If such proceeds were sufficient to repay all advances and costs, the Flagler Street property should be divided, in kind, equally between the parties. To this final decree, and to the order denying the motion to dismiss the bill, the defendant assigned error.
One necessary and essential element is lacking to constitute this transaction a joint venture. The plaintiff, as the record affirmatively shows, had no authority to sell or to offer the land for sale. His control was limited to general management and to advising the defendant when he thought it best to sell. The defendant was not bound by this advice and the power and control over the disposition of the property was hers alone and unabridged. Under Florida law, mutuality of control over the subject matter is essential for the existence of a joint venture. Willis v. Fowler, 102 Fla. 35, 136 So. 358; Boyd et al. v. Hunter, 104 Fla. 561, 140 So. 666; Albert Pack Corp. v. Fickling Properties, Inc., 146 Fla. 362, 200 So. 907; Yokom v. Rodriguez, Fla., 41 So.2d 446; 30 Am.Jur. p. 682 (joint adventure Sec. 12). Consequently, plaintiff acquired no interest either in trust or otherwise in the land. Boyd et al. v. Hunter, supra.
There are no allegations in the bill of complaint which would warrant the intervention of a court of equity for the purpose of having an accounting between the parties, there being no allegation that money had come into the hands of the defendant in which the plaintiff claimed any interest. As aforestated, the plaintiff had no interest in the land and, therefore, no grounds for equitable relief exist. The existence or non-existence of a profit-sharing agreement in return for services rendered or an action predicated upon quantum meruit should be decided in an action at law. The bill of complaint contained insufficient allegations for equitable relief and affirmatively showed that plaintiff's action, if any he has, should be presented in a suit at law.
We do no answer the question — whether the ninety-nine year lease operated as a substitute contract to replace the original profit-sharing agreement in regard to the property that was the subject of the lease. It is unnecessary to decide this question. It can be answered in any subsequent action which the plaintiff might elect to bring in a court of law. The motion to dismiss should have been granted but in the interest of the administration of justice the Chancellor should have ordered this cause transferred to the law side of the Court.
The question raised as to a modification of the terms and conditions of the supersedeas bond regarding the attorney's fee becomes moot in view of the reversal on the main issue.
Reversed with directions to the Chancellor to enter a final decree transferring this case to the law side of the Circuit Court.
ADAMS, C.J., and CHAPMAN and SEBRING, JJ., concur.