Eugene C. Harrington, Appellant, vs. William Rutherford and Rose Kiebel, Appellees, 38 Fla. 321

Mabry, C. J.: The bill in this case filed by appellant against appellees, alleges that the former, at and before the transactions hereinafter set forth, was owner in fee of eighty-five acres of land consisting of two tracts, one of seventy acres, and the other of fifteen acres, and both properly described. That complainant and defendant Rutherford had been jointly interested in a steamboat enterprise as partners, the latter being a silent partner, and being indebted had executed notes by complainant as principal, and endorsed by Rutherford and one P. W.

Merritt, the latter being an accommodation endorser and a friend of complainant. The notes referred to, being three in number, are described. That being desirous of protecting his friend Merritt, and of being relieved of the obligation to pay said notes, complainant entered into an agreement with Rutherford to convey to him the eighty-five acres of land mentioned, if he would pay said notes.

That the fifteen-acre tract had been conveyed to one YanAllen, a part of the consideration being that he should make certain improvements on the land, and having been unable to make all the improvements, YanAllen had agreed to reconvey the fifteen-acre tract to complainant for $450, for which the latter was to execute his note, secured by mortgage on the place, it being worth much more than the sum mentioned.

That the note and mortgage were executed, but instead of having YanAllen to convey the land back to complainant, had Mm to convey it to Rutherford in pursuance of the said agreement with him to pay the notes. Complainant conveyed the seventy-acre tract to Rutherford, and lie was to assume the mortgage given by complainant to YanAllen.

The bill further alleges, using its language, “and now the defendant Rutherford, conspiring with the defendant Rose Kiebel, who is a member of Rutherford’s family, did cheat, and defraud your orator into delivering, and procuring to be delivered, to him without any consideration the deeds to the land aforesaid in this wise; the said Rutherford had prepared and sent to orator a typewritten agreement in which he promised to pay said notes as aforesaid, and by the use of said writing procured orator to send on and deliver to him said deeds. Said writing is hereto attached as an exhibit (exhibit H).

Having received said deeds, the said Rutherford at once conveyed said land to the defendant Rose Kiebel, and then utterly refused and neglected to pay said notes. Wherefore, by means of the wicked devices, coven and fraud of the defendants, orator has parted with the title to his lands, and has not been relieved from his obligation to pay the notes hereinbefore described, endorsed by his friend Merritt as aforesaid.” The agreement in writing, mortgage and deeds are referred to as exhibits, and copies are filed with the bill.

It is also alleged that the mortgage which complainant had given to VanAllen on the fifteen-acre tract was not recorded, and had been surrendered to complainant upon Rutherford’s representation that he had paid it, but complainant found from the records of Dade county that Rutherford had executed a mortgage for $450 to VanAllen on the fifteen-acre tract, and this mortgage had been assigned by the latter to Rose Kiebel. That Rutherford was, at the time of the transactions complained of and the filing of the bill, insolvent, and executions against him had been returned unsatisfied.

It is alleged that there was a pineapple plantation on the land and was liable to go to waste, and it was in need of care by the rightful owner, and there was danger that the products of the property would be appropriated and sold by defendants for their own use, and they were not solvent. The prayer is for a receiver, that defendants be enjoined from conveying, mortgaging or otherwise encumbering the property, and that the deeds from complainant to Rutherford, and from him to Rose Kiehel, be declared null and void.

Also that Rose Kiebel be decreed to convey to complainant the fifteen-acre tract of land conveyed by YanAllen to Rutherford, and by him to her; and for such other relief as will place complainant in the position he occupied with respect to said property before he was induced to part with the title as alleged in the bill. The court sustained a'demurrer to the bill on the ground that it did not make such a case as entitled complainant to any discovery or relief in a court of equity.

The writing marked exhibit “H,” by the use of which, it is alleged, the defendant Rutherford procured the deeds to the land to be delivered to him, is dated the 21st of February, 1891, and the deed to him from Harrington for the seventy acres bears date February 10th, 1891. The deed from YanAllen to Rutherford is dated February 21st, 1891.

The bill states, in effect, that by the use of the writing mentioned the deeds were procured to be delivered, and the allegation as to the delivery must, on demurrer, control, though the date of one of the deeds is prior to the writing marked exhibit “H,” as deeds take effect only from their delivery. We must conclude from the statements of the bill that complainant Harrington and defendant Rutherford were equally liable for the notes, and that either, or both of them if necessary, could have been called on by the holders to pay what was due thereon.

They were interested as partners in a steamboat enterprise, and being indebted executed the notes, three in number, signed by the one as principal, and endorsed by the other and one Merritt. As between Harrington and Rutherford, they were equally liable as principals to pay the notes, as they were given for a joint indebtedness due from both. The notes amounted to over twelve hundred dollars, besides interest, but the actual value of the land deeded to Rutherford is not shown.

A payment of the entire amount of the notes by Rutherford would include over six hundred dollars justly due by Harrington in an adjustment of the indebtedness between the two, and there is nothing stated in the bill to negative the conclusion that such a payment would be a good and sufficient consideration for the conveyance of the land. Rutherford did not, however, pay the notes, but entered into a written agreement with Harrington to pay them.

This agreement, made an exhibit to the bill* recites that divers business transactions had taken place between the parties and that Rutherford had made advances in money to Harrington on agreements* and in order to cancel the same and all matters of business then unsettled between them, it was agreed on the part of Rutherford that he would assume and pay off the notes referred to, and which, it is recited, were then in suit against him in the Circuit Court of Putnam county.

The following is the concluding clause of the agreement: “Now, therefore, for the consideration aforesaid I, the said William Rutherford, de hereby agree to and with said E. C.

Harrington to assume and pay off said notes and all costs and interest thereon, and release the said Harrington and Merritt from any and all responsibility therefor and guarantee the same.” There is nothing in the agreement itself to show that Rutherford assumed to pay the notes and protect the other parties liable thereon in consideration of the conveyance of the land, but the bill alleges that Harrington entered into an agreement with Rutherford to convey to him the land, if he would pay the notes; and it is further stated that the land was conveyed in pursuance of the agreement to pay the notes. ’Conceding that the land was conveyed in pursuance of an agreement to pay the notes, and that the written agreement marked exhibit “H” was executed and accepted in consideration of the conveyances of the land, it is apparent that a good and sufficient consideration is shown, and the sufficiency of the bill must depend upon the alleged fraud in procuring the delivery of the deeds by the use of the written agreement to pay the notes.

As a general rule fraud can not be predicated on a mere promise not performed. As stated in one case, “to be available, there must be a false assertion in regard to some existing matter by which a party is induced to part with his money or his property. In morals the failure to perform a promise may be with-cut excuse or justification, but in law false representations to authorize the recission of a contract must be made in regard to existing facts.” Perkins vs. Lou-;gee, 6 Web. 220.

The authorities establish the rule that ordinarily a promise to do something in the future, though made by one party as a representation to induce another to enter into a contract, will not amount to a fraud in a legal sense, though the promise subsequently and without excuse be broken and unfulfilled. Love vs. Teter, 24 W. Va. 741; Fouty vs. Fouty, 34 Ind. 433; Burt vs. Bowles, 69 Ind. 1; Farrar vs. Bridges, 3 Humph. 565; Long vs. Woodman, 58 Maine, 49; Grove vs. Hodges, 55 Penn. St. 504; Chicago, Texas & Mexican Central Ry. Co. vs. Titterington, 84 Texas 218, 19 S. W. Rep. 472; Feret vs. Hill, 15 C. B. 207.

The bill before us shows that the complainant Harrington, being desirous of relieving himself from the payment of the notes, and of protecting his friend Merritt, entered into an agreement with Rutherford to convey him the land in question, if he would pay the’ notes, and that the land was conveyed in pursuance of this agreement to pay the notes. It is not shown that complainant was induced to enter into this agreement-by any false representations or fraudulent practices whatever.

It is stated that the defendant Rutherford,, conspiring with the other defendant, Rose Kiebel, did cheat and defraud complainant into delivery and procuring to be delivered the deeds to the land, but how this was accomplished is explained: Rutherford prepared and sent to complainant a typewritten agreement assuming to pay the notes, interest and all costs, of suit, and by the use of this writing procured complainant to send on and deliver the deeds.

Prom this-we are not warranted in assuming that Rutherford made any statements or representations other than to. prepare and send to complainant a typewritten agreement assuming to pay the notes, and this was in fact the agreement, as the bill states, in pursuance of which the land was conveyed. Rutherford was at the time insolvent, as it appears, but no representations were made as to his condition in this respect, and complainant was not misled by false statements as to it.

The agreement by its very terms contains a promise to do something in the future — pay the notes and guarantee Harrington and Merritt against all liability thereon— and under the rule stated the bill fails to make a good case on the theory that the deeds were fradulently procured to be delivered.

The case designed to be stated by the pleader, no doubt, was that Rutherford, at the time he prepared and sent the written agreement promising to pay the notes, did so with the design of cheating and defrauding complainant Harrington into delivery of the deeds by means of the false written promise, and that there was no intention on Rutherford’s part at the time of ever performing the promise, but used it merely as a false pretense to induce the delivery of the deeds, and that in the accomplishment of this design Rutherford conspired with Rose Kiebel to accept a title to the land when deeded to him, and thereby put it beyond the reach of legal process, and that such scheme was accomplished by the use of the written promise.

If such a case had been stated in the bill, a different question would be presented, in reference to which we need not express an opinion. Miller vs. Howell, 1 Scam. 499, S. C. 32 Am. Dec. 36; Gross vs. McKee, 53 Miss. 536; Dowd vs. Tucker, 41 Conn. 197; Chicago, Texas & Mexican Central Ry. Co. vs. Titterington, supra. Pleadings are to be construed most strongly against the pleader, and it devolves upon a complainant to state a clear prima facie case by positive averments. Our conclusion is, that the demurrer was properly sustained to the present bill, and the order appealed from will be affirmed.

Ordered accordingly.