Opinion
August 28, 1951.
Appeal from the Circuit Court for Lake County, F.R. Hocker, J.
Pringle Pringle and H.L. Pringle, all of Leesburg, for appellants.
Arthur T. Boone, Jacksonville, T.G. Futch, Jr., and P.C. Gorman, Leesburg, for appellees.
This case was here before, Regnvall et ux. v. Sayle et ux., Fla., 45 So.2d 674, and the court reversed the order of the chancellor dismissing the bill of complaint. It is now here again, after the taking of testimony, to review the final order of dismissal. We are of the view that the testimony which the chancellor chose to believe failed to support the bill and that, therefore, there is no occasion for us to interfere, so the decree is
Affirmed.
SEBRING, C.J., and TERRELL, THOMAS, HOBSON and ROBERTS, JJ., concur.
CHAPMAN, J., dissents.
ADAMS, J., not participating.
This cause comes here for the second time. On the first appeal, See Regnvall et ux. v. Sayle et ux., Fla., 45 So.2d 674, 675, we sustained the legal sufficiency of the third amended bill of complaint and said: "Paragraphs twelve to nineteen inclusive of the third amended bill are ample to warrant equitable relief if the material allegations therein are proven." The cause was reversed and upon the going down of our mandate an answer or answers were filed and testimony was taken before the Chancellor on the issues made by the pleading. On final hearing the equities were decreed to be with the defendants-appellees and the cause dismissed. The plaintiffs appealed.
A brief resume of the pertinent allegations of fraud relied upon and set forth in the third amended bill of complaint from paragraphs twelve to nineteen, inclusive, which are denied in the answer, are substantially viz:
Paragraph 12 of the third amended bill of complaint alleged that the defendants represented to the plaintiffs that the described lands comprised approximately 8 acres when in fact the entire acreage consisted of only 3.6 acres.
Paragraph 12 of the answer of the defendants denied paragraph 12 of the third amended bill of complaint.
Paragraph 13 of the third amended bill of complaint alleged that the defendants represented to the plaintiffs that the described land had a frontage on Federal Highway 441 an approximate distance of 1320 feet, but in truth and fact the frontage was only 755.6 feet.
Paragraph 13 of the answer of the defendants denied the allegations of paragraph 13 of the third amended bill of complaint.
Paragraph 14 of the third amended bill of complaint alleged that the plaintiffs expressed a desire of employing a surveyor and having the described lands surveyed, but the defendants represented that such a survey would be an unnecessary expense as a recent survey made by the defendants disclosed the exact acreage as by defendants represented and plaintiffs did not have the survey made, but relied upon the representations as true and correct as made to them by the defendants.
The defendants denied this allegation in paragraph 14 of their answer.
Paragraph 15 of the third amended bill of complaint alleged that the defendants misrepresented to the plaintiffs the true location of the northern boundary of the described land as being at a culvert on Federal Highway # 441, when as a matter of fact the correct location is 244.3 feet south thereof. The plaintiffs did not measure the same but relied on the representations of the defendants.
The defendants, in paragraph 15 of their answer, denied the allegations of the 15th paragraph of the third amended bill of complaint.
Paragraph 16 of the third amended bill of complaint alleged false representations by the defendants as to other boundaries and land corners of the described lands; also represented that described lands situated on the west side of the described lands were a part thereof, which was, as alleged, false and untrue; that income from a trailer park owned by the defendants was included in the rental record of the described property; the defendants represented that they owned certain described property and the same would be transferred to the plaintiffs, when in truth the representations were false.
Defendants simply denied paragraph 16 of the third amended bill of complaint.
Paragraph 17 of the third amended bill of complaint alleged that the defendants represented the annual gross income of the tourist court and the trailer park at the approximate sum of $15,000, when in truth and fact the annual income was only $8,600.
The defendants in their answer specifically denied paragraph 17 of the third amended bill of complaint.
Paragraph 18 of the third amended bill of complaint represented that the monthly sales of gasoline at the filling station situated on the property was 5,000 gallons prior to September 1, 1947, when in truth and fact the monthly sales thereof amounted to only 3,000 gallons.
The defendants denied the allegations of paragraph of the third amended bill of complaint.
Paragraph 19 of the third amended bill of complaint alleged that the defendants falsely represented that they owned areas adjacent to the tract subsequently conveyed which were a part of the tract in question and suitable for expansion of the trailer park and the tourist court, when as a matter of truth and fact the defendants did not own the same.
The defendants denied the allegations of paragraph 19 of the third amended bill of complaint.
The question argued here by counsel for the respective parties is the sufficiency of the evidence to establish the material allegations of the third amended bill of complaint. Counsel for plaintiffs-appellants contend that the material allegations of misrepresentation made by the defendants-appellees to the appellants as an inducement to pay the $15,000 and make the notes and mortgage have been clearly established by parol testimony and documentary evidence and the Chancellor erred in dismissing the third amended bill of complaint on final hearing. Counsel for defendants-appellees contend that the parol and documentary evidence was legally insufficient and the decree of dismissal was proper.
Emphasis by counsel for appellees is placed on findings of the Chancellor on disputes and conflicts in the testimony and it is earnestly contended that the following principle of law is applicable as held by us in Farrington v. Harrison, 95 Fla. 769, 116 So. 497, when we said:
"We also bear in mind the oft-reiterated rule that, while the findings of the chancellor on the facts where the evidence is heard by him, and the witnesses are before him, are entitled to more weight in the appellate court than where such findings are made in a cause where the testimony was not taken before the chancellor, yet in either case the chancellor's findings should not be disturbed by an appellate court unless shown to be clearly erroneous. Sandlin v. Hunter Co., 70 Fla. 514, 70 So. 553; Travis v. Travis, 81 Fla. 309, 87 So. 762; Lucas v. Wade, 43 Fla. 419, 31 So. 231.
"On the other hand, where a decree is manifestly against the weight of the evidence, or contrary to, and unsupported by, the legal effect of the evidence, then it becomes the duty of the appellate court to reverse such decree. Carr v. Lesley, 73 Fla. 233, 74 So. 207; Florida National Bank v. Sherouse, 80 Fla. 405, 86 So. 279; McGill v. Chappelle, 71 Fla. 479, 71 So. 836; Lightsey v. Washington Park Properties, 93 Fla. 531, 112 So. 555."
We held on the former appeal of the cause in this Court that if the plaintiffs-appellants proved the material allegations of paragraphs 12 to 19, inclusive, of the third amended bill of complaint, it would be sufficient to warrant equitable relief, or, in other words, the relief as therein prayed for. The defendants-appellees in their answer after the going down of our mandate simply denied the material allegations of paragraphs 12 to 19, inclusive. An examination of all the testimony and exhibits certified here is essential and necessary in order to arrive at a sound conclusion on the points in issue as to whether or not the plaintiffs-appellants carried the burden of proof in establishing the material allegations, supra. If the record discloses that the appellants have carried the burden, then the decree of dismissal must be reversed, otherwise affirmed.
Paragraph 12 of the third amended bill of complaint alleged that the H.H. Sayle represented to the plaintiffs-appellants that the tract of land comprised approximately 8 acres. The proof adduced to sustain the allegation is the agreement to purchase dated September 1, 1947, and signed by H.H. Sayle and wife and John Regnvall and wife. The instrument described the property viz.: "All that portion of the SW 1/4 of the NE 1/4 of Section 20, township 19 South, Range 25 east, consisting of approximately eight acres, and being on the west side of the R/W of State Highway Number 2." The draft of the deed and purchase price mortgage follow the description appearing in the purchase agreement signed by the parties, but each of these instruments omits the phrase, "consisting of approximately eight acres." Mr. Sayle testified that the eight acres appearing in the purchase price agreement was an error and admitted to be such by the parties in attorney Duncan's office at Tavares when the trade was closed, but attorney Duncan, acting as scrivener for the parties, does not recall such an admission. Attorney Duncan testified that he inserted the description of the property in the two instruments as prepared and submitted to him by Mr. Sayle. Surveyor C.H. Willard testified that he surveyed the property and the property conveyed comprised 3.6 acres.
Paragraph 13 of the third amended bill of complaint alleged that the defendants-appellees represented that the described land had a frontage on Federal Highway 441 of an approximate distance of 1320 feet. There is no dispute or conflict in the evidence as to the exact frontage on the highway of the property conveyed to the appellants as testified to by the surveyor C.H. Willard. The surveyor stated that the exact frontage was not 1320 feet but only 755.6 feet.
We find in the record an abundance of testimony to sustain the material allegations of paragraph 14 of the third amended bill of complaint. The record discloses the exact acreage as represented by the appellees comprised approximately eight acres, and the statement of acreage was based on a recent survey and the costs of another survey by appellants to determine the exact acreage was wholly unnecessary. The appellants relied on the statement made by Sayle as to acreage and did not cause the tract to be surveyed.
Paragraph 15 alleged that the defendants-appellees pointed out to the appellants the correct monuments about the property and represented them as the true and correct boundaries of the property. The monument on the north was a culvert, west of the highway was a "pine tree" and further south was a large "oak tree". The surveyor Willard testified that the culvert was situated approximately 244 feet north of the property owned by Sayle. The "pine tree" and the "large oak" were not monuments about the Sayle property.
Paragraph 16 alleged that Sayle pointed to property as a part of the land to be conveyed when the record discloses that he did not own the same. On October 21, 1947, appellee Sayle obtained a deed by purchase of certain property situated on the south of the property involved in this suit, which was pointed out to appellant as a part of the land being purchased by him.
The sufficiency of plaintiffs-appellants' proof offered to establish paragraphs 17 and 18 of the third amended bill of complaint may be considered as a single assignment. These paragraphs allege a misrepresentation by the defendants-appellees of the annual income of the property purchased by the appellants. On the property conveyed were: (1) eight cottages to be furnished; (2) a filling station; (3) space for trailer camp; (4) space for expansion of the tourist court; and (5) another income producing building. It was alleged that the defendants-appellees misrepresented the gross annual income of these properties in order to induce the appellants to purchase the same. The gross annual income prior to the time of purchase in September, 1947, was represented to be the sum of $15,000 by the appellees. It is true that the appellees submitted to the appellants some record disclosing the income on the property prior to the time of purchase but the gross annual income prior to purchase was not the sum of $15,000. In the record is the income tax reports made by the appellees to the Federal Government for the years 1946 and 1947. The income on the property for the year 1946, according to the joint return of the appellees, amounted to $7,226.80, and for the year 1947 the sum of $7,329.26.
Paragraph 19 of the third amended bill of complaint alleged that the defendants-appellees falsely represented that the described tract had sufficient acreage to permit and allow an expansion of both a "trailer park" and "tourist court". If the tract had comprised the eight acres, as described in the purchase and sale agreement as signed by the parties, then this representation of fact was possibly accurate. The tract consisted of only 3.6 acres and, according to the appellants, Sayle pointed out to them land or adjoining property that he did not own as being part of the tract to be conveyed. The map or plat prepared by the surveyor placed in the record identified the monuments about the property and the exact acreage. It is not disputed that Sayle discouraged the idea of another survey of the property prior to purchase by the appellants. The appellants accepted as true the several representations of fact made by Sayle as an inducement to purchase. We find evidence as to the existence of a confidential relationship between Regnvall and Sayle based, in part, on a long acquaintance of approximately thirty years and Regnvall had confidence in Sayle's statement and representations about the property, declined to employ counsel, inspect the public records, or obtain the services of a surveyor, but relied solely on the representations of Mr. Sayle.
Mr. Duncan testified that he did not see the purchase and sale agreement of the parties until some time after the deal was closed. He did not recall a statement as made by him to the effect that the number of acres in the sale agreement was a typographical error. Mr. Duncan testified further, to-wit:
"Q. Who told you what terms and conditions to put into the note and mortgage? A. Mr. Sayle.
"Q. At the time of the closing of this transaction in your office what discussion was there of the terms and conditions of the transaction or any other matters relating to it? Will you tell the Court the best you can as to that? A. I don't remember of any discussion particularly of the contract. I drew the mortgage in accordance with Mr. Sayle's instructions. The first time I drew it it wasn't quite as he wanted it and I redrafted it and then he made an appointment with me to close the deal in my office with Mr. and Mrs. Regnvall present. I don't recall the details of the contract was gone into at that time.
"Q. Was there any statement by either of the parties in your office that the terms of the prior written agreement between the parties was not to be binding as it was written? A. The contract was hardly discussed at all that I recall. I reviewed the terms of the mortgage with the Regnvalls and ask them if that was their understanding of it.
"Q. Was the matter of acreage involved in the transaction discussed at that time? A. We checked the description that went into it, but I don't recall any question of acreage that went into it.
"Q. Do you remember commenting to the effect that the acreage as stated in the written contract was probably a typographical error? A. I can't remember any such a statement, no sir."
The purchase and sale agreement signed by the parties recited that the land consisted of approximately eight acres. It is observed that attorney Duncan testified that he described the property in the purchase price mortgage and deed exactly as submitted to him by Mr. Sayle. These instruments omitted the words "consisting of approximately eight acres" in describing the real property. The documents introduced into evidence establish this fact and on this point we find no disputes or conflicts in the testimony. The land conveyed was not approximately eight acres but 3.6 acres.
The gross annual income from the property conveyed was not $15,000 as represented by Mr. Sayle, but his sworn income tax report made jointly with his wife for the year 1946 placed the amount at $7,226.80 and from January to September of 1947 at the sum of $7,329.26. The property did not have a frontage on the highway of 1320 feet but the record discloses the same as 755.6 feet. The culvert on the highway is 244 feet north of the land conveyed. The "pine tree" and the "large oak tree" were found not to be on the land conveyed. It is probably true that disputes and conflicts appear in the evidence as to some of the minor points of the controversy, but misrepresentation was established by documentary evidence as to the annual gross income of the property, the number of acres conveyed, frontage on the highway, monuments about the property, and suitable land for expansion of the "tourist court" and the "trailer camp". The above points were essential and material and went to the very heart of the transaction. They consist largely of documentary evidence and not disputes or conflicts in the testimony.
It is established law that where a decree is manifestly against the weight of the evidence or contrary to and unsupported by the legal effect of the evidence, then it becomes the duty of the Appellate Court to reverse such a decree. Farrington v. Harrison, supra. It is quite likely that the able Chancellor below inadvertently failed to consider the probative weight and force of the documentary evidence adduced as exhibits in this cause.
I would reverse the decree with directions to enter a final decree for plaintiffs-appellants according to the prayer of the third amended bill of complaint.