In Savage v. Horne, Fla., 49 So.2d 329, the court said: "It is not champerty for a client to assign to his attorney an interest in the subject matter of the suit as security for payment for his services, or in payment of a precedent debt or for services actually rendered."Summary of this case from Bottum v. Herr
November 14, 1950. Rehearing Denied January 3, 1951.
Appeal from the Circuit Court for Marion County, F.R. Hocker, J.
James M. Smith, Jr., Ocala and Sam Bucklew, Tampa, for appellants.
Greene Ayres, Ocala, for appellees.
Plaintiffs, who are appellants here, filed their bill in equity to rescind a contract for the purchase and sale of land theretofore entered into between plaintiffs' assignor, one Lang, and the defendants, appellees here. The sufficiency of the bill was tested by defendants' motion to dismiss, and this court in Savage v. Horne, 159 Fla. 301, 31 So.2d 477, held that the allegations of plaintiffs' bill were sufficient to state a cause of action. The defendants then filed their answer, in which they relied principally on the defense that plaintiffs' assignor, Mr. Lang, had "abandoned" the contract prior to the assignment to plaintiffs. The lower court, after hearing the testimony of the parties, sustained the defendants' contention and dismissed the cause. This appeal is from such final decree of dismissal.
The facts of this case are set out fully in the opinion rendered on the previous appeal, above referred to, and we will not here repeat them. It appears from that opinion and from the record submitted on that appeal that the question of whether or not Mr. Lang had abandoned the contract prior to his assignment to plaintiffs was presented squarely to this court at that time. The defendants contended on the former appeal that plaintiffs' bill affirmatively showed that Lang had abandoned the contract by virtue of the following facts and circumstances, therein alleged: (1) by filing suit for rescission of the contract; (2) by defaulting in his payments under the contract; (3) by abandoning possession of the property; and (4) by assigning the contract to plaintiffs. This court held that there was nothing in the record to sustain the contention that Lang had abandoned the contract; and, since it is the law of the case, we must hold that the foregoing facts and circumstances do not constitute an abandonment of the contract by Lang. See Savage v. Horne, 31 So.2d at pages 480 and 481.
The additional facts set forth in defendants' answer and not incorporated in their previous motion to dismiss (and thus not before this court on the previous appeal) were, in substance, (1) that Lang entered into the contract to purchase the lands solely for the purpose of setting up his son in the cattle business in order to obtain his deferment from military service; and that, as soon as his son's deferment was denied, Lang lost all interest in the cattle business and determined to retire from such business and to abandon the contract with defendants; and (2) that the defendants, through their attorney and shortly after Lang filed his suit for rescission, tendered to Lang the abstracts of title, which Lang refused to accept. In this latter connection, it does not appear that Lang was placed in default by the defendants for his failure to accept delivery of the abstracts, since Lang's attorney was advised by defendants' attorney that he was "holding the abstracts in [his] possession until further notice for delivery to Mr. Lang or his authorized agent in the event he decides to accept delivery of the abstracts under his contract with Mr. Horne within a reasonable time." No other tender of the abstracts was made, nor did defendants indicate to Lang that they considered his refusal to accept the abstracts as a breach of the contract until after Lang had tendered payment under the contract.
It is admitted that Lang did close out his cattle business, and it may well be that his motives in so doing were those ascribed to him by the defendants. But we do not think the motives of Lang in entering into the cattle business and in subsequently closing out such business are decisive of the question of whether or not he abandoned the contract here involved. And even if we consider that such motives give color to, and change the character of, the facts and circumstances, above referred to, which we have previously held did not constitute an abondonment of the contract, we still think that something more is required in order to prove that complete and utter abandonment of a contract which will deprive a vendee of his standing in equity and thus forfeit all his rights under the contract, including the right to recover at least a portion of his down payment.
It is uncontroverted that the contract did not contain a forfeiture provision, nor was time of payment declared to be of the essence of the contract. Although Lang or the plaintiffs, as his attorneys, were available at all times for such notice as defendants might elect to give them with respect to Lang's breach of contract, it was not until after Lang had tendered to them the amount due under the contract that the defendants, through their attorney, advised Lang that they considered that he had "wilfully and flagrantly breached the contract" and offering to "waive" the breach if Lang would reimburse them for services of their counsel in defending Lang's suit for rescission of the contract. A vendee, though previously in default, may tender performance prior to forfeiture by the vendor. Dickson v. Ridge Realty Co., 141 Fla. 807, 194 So. 241.
Moreover, it appears that the defendants had treated the contract as in existence as late as June 25, 1945, when it was included as collateral on a loan made to defendants by the Commercial Bank Trust Co. of Ocala. This was more than a year after the institution of suit by Lang, during which time the payments under the contract had been suspended. The contract was not released as security for such loan until December 29, 1945, which was subsequent to the tender of payment by Lang, as well as the two tenders of payment made by the plaintiffs as assignees of the contract.
It is our opinion that nothing contained in defendants' answer nor any proof adduced at the trial authorizes this court to alter its previous decision that neither plaintiffs nor Lang were in default under the contract; nor can it be said that Lang had so "abandoned" the contract as to dispense with the necessity of defendants' giving Lang a written notice sufficient to put him in default under the contract and as a basis for the forfeiture of his rights under the contract and to moneys paid thereunder.
Nor do we consider the assignment of the contract by Lang to plaintiffs champertous, as contended by defendants. It was established that Lang was indebted to plaintiffs for prior services rendered in previous litigation. It is not champerty for a client to assign to his attorney an interest in the subject matter of the suit as security for payment for his services, or in payment of a precedent debt or for services actually rendered. 14 C.J.S., Champerty and Maintenance, § 15, p. 363; Sampliner v. Motion Picture Patents Co., 2 Cir., 255 F. 242, 248; Hudson v. Sheafe, 41 S.D. 475, 171 N.W. 320, 324; W.T. Rawleigh Co. v. Timmerman, 205 Ala. 233, 87 So. 372.
For the reasons stated, the final decree is reversed and the cause remanded, with directions to the Chancellor to enter a decree for the plaintiffs in the amount to which they are equitably entitled.
ADAMS, C.J., and CHAPMAN and HOBSON, JJ., concur.
TERRELL and THOMAS, JJ., dissent
SEBRING, J., not participating because of illness.