Opinion
August 22, 1952. Rehearing Denied October 24, 1952.
Appeal from the Circuit Court for Palm Beach County, Joseph S. White, J.
Marion Brooks, Miami, for appellant.
Baker Newett, West Palm Beach, for appellees.
This is an appeal from a final decree entered by the Chancellor in the Court below. Two separate cases were filed but were consolidated and one order entered.
It appears that the parties hereto entered into a contract whereby a corporation was to be formed. According to the provisions of said contract two of the defendants were to convey property to the corporation for which they were to receive certain shares of stock in the said corporation.
The defendant Altiere was to construct, erect and manage the two apartment houses to be built on the property. He was to receive nothing for his work as manager or builder until the plaintiff Ungaro was fully paid all sums due him.
The plaintiff Ungaro, an architect, was to draw plans and prepare specifications for the project, secure a loan from F.H.A. under Title 608, as sponsor, and make certain advancements or loans as working capital if and when needed for the completion of the project.
He was to receive a commission for securing the loan from F.H.A., and was to be paid said commission upon completion of the project "or as soon thereafter as the net revenue from said project will permit." The contract is therefore indefinite as to time of payment of this amount.
The plaintiff Ungaro was also to be paid his architectural fees and repaid the money loaned or advanced as working capital to the corporation. The principal question before the Chancellor was when this money became due and payable to the plaintiff Ungaro.
Plaintiff Ungaro was to be issued 51 shares of the stock of the corporation to secure the payment of all monies that might be due him for advancements, loans and fees.
A corporation was duly chartered under the name of West Palm Beach Biltmore Apartments, Inc. Stehli and Robinson conveyed the property described in the contract between the parties to the corporation and were issued 49 shares of common stock in the corporation.
Altiere supervised the erection and construction of the project and was managing same at the time these causes commenced.
Ungaro obtained the loan from F.H.A. and, according to the Court's findings, became entitled to a fee of $9,534.
The Court further found that Ungaro had advanced or loaned the corporation, under the terms of the contract, as working capital, the sum of $28,005.57.
It was further the Court's findings that Ungaro was entitled to the sum of $3,725, at the time of the order, for his services as architect on the project.
There seems to be no serious contention about these amounts being correct as the appellant does not raise any question about it and the appellees have submitted no argument in their briefs on the question, although they did raise the issue on their cross assignments of error, so we consider the same as having been abandoned.
The appellant contended and now contends that the time for the repayment of the loans or advances and the architect's fee was silent in the contract and therefore was due immediately.
The appellees contended that the contract, if taken as a whole, would disclose that the loans and architectural fees were to be paid the same as sponsor fees "upon completion of the said project, or as soon thereafter as the net revenue from said project shall permit."
The only other contentions between the parties were the amount of interest due, if any, or when interest should begin to run and whether Altiere should remain as manager.
The Chancellor apparently believed that the terms of the contract, as to time of payment of architectural fees and advances, were ambiguous, uncertain and obscure for he permitted evidence to be introduced, at the hearing before him, bearing on surrounding facts and circumstances to determine the intention of the parties. See St. Lucie County Bank Trust Co. v. Aylin, 94 Fla. 528, 114 So. 438.
Having heard the testimony and read the contract, the learned Chancellor determined by his final decree that the parties intended to discharge the obligation to Ungaro under the terms of the contract out of the mortgage loan commitment if a surplus remained after completion of the project, and if no such surplus existed the debt was to be discharged "as the net revenue from the project shall permit."
We are of the opinion there was sufficient evidence in the record for the Chancellor to have so found. See Florida Power Corporation v. City of Tallahassee, 154 Fla. 638, 18 So.2d 671; Triple E Development Co. v. Floridagold Citrus Corp., Fla., 51 So.2d 435; 17 C.J.S., Contracts, § 456(d), page 940; William F. Mosser Co. v. Cherry River, etc., Co., 290 Pa. 67, 138 A. 85; In re H.A. Shaver Co., D.C., 265 F. 426.
The Court further found:
"The contract does not provide for the payment of interest. Therefore, plaintiff will be entitled to interest at the rate of 6% per annum only for the period of the delinquency of any annual installment."
The Court in its order retained jurisdiction to fix and determine a sum to be paid annually on the amount due Ungaro.
In other words, the Court found that although the amounts set forth were owing to Ungaro under the terms of the contract, the debt did not become due and payable until there was sufficient monies from "net revenue" to pay him, therefore, interest was to begin at a date to be fixed by the Chancellor when he determined what amount was to be paid annually. See McMillan, v. Warren, 59 Fla. 578, 52 So. 825. See also Section 55.03, F.S.A. and Florida Statutes.
As to the contention that Altiere should not be allowed to stay on as manager the Chancellor held that he should remain as such, as provided in the contract, but virtually made him a receiver by ordering that he make quarterly reports of his cash receipts and disbursements in writing and that he serve without pay. By this action the Chancellor is not only saving the cost of a new manager or receiver, but is providing a safeguard for the entire project at no cost to the parties.
We have carefully reviewed the testimony in this case. Although there were some conflicts, these conflicts were resolved by the Chancellor. There was not only sufficient testimony to support the findings of the Chancellor but the preponderance of the evidence supports such findings. Peterson v. Hancock, 146 Fla. 410, 1 So.2d 255; Johnston v. Thomas, 93 Fla. 67, 111 So. 541.
Affirmed.
SEBRING, C.J., and ROBERTS and MATHEWS, JJ., concur.