Opinion
April 20, 1954. Rehearing Denied May 27, 1954.
Appeal from the Circuit Court for Dade County, Wayne Allen, J.
I.R. Mayers, Miami, for appellant.
Patton Kanner, Miami, for appellees.
This is an appeal from an order dismissing plaintiff-appellant's second amended bill of complaint for want of equity.
The second amended bill of complaint alleged:
"1. That the plaintiff is a resident of Dade County, Florida, and at all times hereinafter mentioned was a duly and regularly licensed general contractor, licensed by the State of Florida, to act in such capacity; that the defendant, Selma Arthur, and Sam Hasner, are residents of Dade County, Florida; that Prince Arthur Building Corp. is a corporation organized and existing under the laws of the State of Florida, and that all the real parties hereto are over the age of 21 years.
"2. That on or about the middle of January, 1953, Alfred D. Lewis, Selma Arthur, and Sam Hasner, entered into an oral contract to organize a corporation under the laws of the State of Florida; said corporation to be known as Prince Arthur Building Corp., to erect 36 dwelling houses on a certain tract of land to be selected by them. That under the terms of said oral contract, Alfred D. Lewis was to aid in the selection and purchase of a suitable tract of land whereon the dwelling houses were to be erected; that he was to create sketches of dwelling houses of such size and proportion to compete with other project homes, in price and quality; within the community wherein the dwelling houses were to be erected; that he was to engage the services of a licensed architect to draw plans and specifications pursuant to his creation; that upon the plans and specifications being drawn, he was to secure from the Veterans Administration their certificate of reasonable value for sale to veterans the said homes; that he was to initiate proceedings to obtain permanent mortgage commitments on the said homes and obtain construction loans based on said permanent mortgage commitments in order to raise the capital necessary to finance the construction of the said homes; that he was to engage the services of a licensed surveyor to survey the said land, which was necessary to the development of the said project and caused a plat to be drawn and submitted to the proper governmental agencies for approval; that in addition to all the above duties he was to supervise the entire construction of the project as general contractor.
"3. That the defendants Selma Arthur and Sam Hasner, were to advance sufficient capital to organize the said corporation, and to loan the corporation sufficient sums of money, over and above the amount of the construction loan heretofore referred to for the purpose of purchasing a suitable tract of land and to complete the construction of the homes, which said sums were to be repaid to them by the corporation before division of profits between the parties herein.
"4. It was agreed by and between the parties herein that the corporation was to be formed prior to the actual commencement of construction, and was to be authorized to issue 48 shares of stock of no par value, and said shares were to be issued as follows:
(a) Selma Arthur 16 shares (b) Sam Hasner 16 shares (c) Alfred D. Lewis 16 shares said stock to be issued at the time of the formation of the said corporation and prior to the actual commencement of construction."5. Plaintiff says that he has completely performed all of his obligations as set forth hereinabove with the sole exception of supervising, in the capacity of general contractor, the actual construction of the homes above described; that the corporation has been formed and its charter filed with the Secretary of State in Tallahassee, Florida; that to the plaintiff's best knowledge and belief the defendants have caused the stock in the said corporation to be issued, or that the said stock is now ready to be issued, and that at the time of the filing of the original Bill of Complaint he was entitled to have the 16 shares of stock above described issued to him, and that prior to the filing of this action the plaintiff demanded of the defendants and all of them to issue to him 16 shares of stock in the said corporation, and that at the same time tendered and offered to further perform the balance of his obligations pursuant to the terms of the oral contract above described, and he has advised the defendants that he is ready, willing, and able to perform the balance of his obligations.
"6. That despite his performance of the terms of the contract above alleged, and despite his demand to be issued 16 shares of stock in the corporation above described, the defendants and all of them refused and still refuses to so issue him the 16 shares of stock to which he is entitled."
It therefore appears that plaintiff in the court below asserted the existence of a contract which obligated him to perform certain services and which obligated the parties to form a corporation to take title to the property contemplated to be used for development, and to issue to plaintiff and to the other two parties, each 16 shares of stock in such corporation; that the two associates of appellant procured the issuance of letters of incorporation, but failed and refused to issue 16 shares of stock (the value of which cannot be determined) although, as it is alleged, plaintiff had performed all acts and services contemplated by the contract to be performed by him prior to receiving the 16 shares of stock in such corporation.
Under these conditions the test is whether or not the bill of complaint states any grounds for equitable relief. See Lykes Bros., Inc. v. Board of Commissioners of Everglades Drainage District, Fla., 41 So.2d 898 and cases there cited.
For reversal, appellant relies on our opinion and judgment in McCutcheon v. National Acceptance Corporation, 143 Fla. 663, 197 So. 475, 130 A.L.R. 915 and cases there cited. It is not necessary for us to repeat here what was said in the opinion in that case, as such opinion is available to the Bench and Bar of Florida. Appellee relies on our opinion and judgment in Calumet Co. v. Oil City Corporation, 114 Fla. 531, 154 So. 141, and cases there cited, as well as cases supporting the ruling adopted in that case.
We think that under the allegations of the second amended bill, the case falls squarely under the enunciations promulgated in the McCutcheon case, supra, and that because of the difference in factual conditions alleged, the case does not fall within the purview of the controlling rule stated in the case of Calumet Co. v. Oil City Corporation, supra.
Having reached this conclusion, the decree is reversed and the cause remanded with directions for further proceedings not inconsistent with the views herein expressed.
It is so ordered.
ROBERTS, C.J., TERRELL and MATHEWS, JJ., and TAYLOR, Associate Justice, concur.
DREW, J., dissents.
SEBRING, J., not participating.
It is a firmly established rule that a contract for personal services will not be enforced in equity by compelling the rendition of the services. See Calumet Co. v. Oil City Corporation, 114 Fla. 531, 154 So. 141; 81 C.J.S., Specific Performance, § 82, p. 591; 49 Am.Jur. 156, Section 134.
If the lower court cannot compel the appellant to perform the personal services which are admittedly a part of the consideration for the stock, there is no mutuality of remedy. Calumet Co. v. Oil City Corporation, supra.
If there is no mutuality of remedy specific performance (a discretionary writ) will not lie. Calumet Co. v. Oil City Corporation, supra; Gautier v. Bradway, 87 Fla. 193, 99 So. 879.
If the above are correct statements of the law the lower court was entirely correct in dismissing the bill and leaving the appellant to pursue his remedy at law, which, I think, is the effect of the order appealed from.
The main opinion rests almost entirely on the case of McCutcheon v. National Acceptance Corporation, 143 Fla. 663, 197 So. 475, 478, 130 A.L.R. 915.
The only point settled in that case was that a contract for the sale of corporate stocks that have no recognizable or market value or which are procurable only from him who has agreed to sell may be specifically enforced in equity. It was because of this holding that the court in that case concluded that "the bill of complaint contains equity." In that case we were not faced with the proposition that there was a lack of mutuality of remedy, because at the time the suit was filed the complainant was either entitled to the stock — or he wasn't — as a matter of law. Nor was there any question of the performance of personal services in the future. The contract there involved was for personal services for one year commencing October 17, 1938, with the stipulation that if the employer "discharges you without cause, within one year from date, the entire amount of stock * * *" was to be transferred to plaintiff. While the plaintiff was discharged nine months after the agreement was made, the suit for specific performance was not instituted until October 26, 1939, nine days after the time for performing personal services under the contract had expired. And so it was, at the time suit was started there was a clear field in which equity jurisprudence could operate.
I therefore respectfully dissent.