Judges: PER CURIAM. —
Attorneys: Marks, Marks Holt and Herbert Lamson, for Appellants;
Telfair Knight, Thomas W. Fielding and W. S. Broome, for Appellee.
Filed: Aug. 03, 1926
Latest Update: Mar. 02, 2020
Summary: Where the owner consigns cotton to his factors who make advances and charge interest thereon as *Page 471 well as sell cotton retaining advances, interest, commissions and charges, and under circumstances of financial stress and the low price of cotton the factors secure from the owner an agreement to divide profit after all charges are paid should the price advance, the factors being reasonably secured if the price recedes, such agreement under the facts of this case, will not in equity be a de
Summary: Where the owner consigns cotton to his factors who make advances and charge interest thereon as *Page 471 well as sell cotton retaining advances, interest, commissions and charges, and under circumstances of financial stress and the low price of cotton the factors secure from the owner an agreement to divide profit after all charges are paid should the price advance, the factors being reasonably secured if the price recedes, such agreement under the facts of this case, will not in equity be a def..
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The conclusion reached by the court in this case was not only justified but required by the evidence and the rules of decision by which appellate courts are guided. At least such was and now is the opinion of a majority of the members of this Court as now constituted.
The record is a voluminous one. It consists of one thousand and ninety pages of typewritten matter of which the pleadings, exhibits, orders and a large part of the transcripts of the record in two former appeals and other documents cover about one hundred and ninety-five pages and the remainder of the record, about eight hundred and fifty pages, consists of the evidence, orders of court and notices relating thereto.
To the minds of the solicitors who directed the preparation of this voluminous record it was necessary to present the simple question whether cotton factors will be permitted, without full disclosure to their principal whose cotton they hold, of all material information which they possess affecting the trust fund in their hands, to speculate with it to their own advantage and to the detriment of their principal.
The chancellor, from whose decree the appeal was taken, presumably arrived at his conclusion after a careful, thorough and conscientious consideration of the evidence and a majority of the members of this Court, after a careful reading of the record, following a rule of decision which the Court has consistently followed for more than half a century, were unable to discover, with such assistance as appellants' solicitors were able to furnish, that the chancellor had clearly erred in his conclusion of facts and in his decree. See Fuller v. Fuller, 23 Fla. 236, 2 South. Rep. 426; Waterman v. Higgins,28 Fla. 660, 10 South. Rep. 97; Perez v. Bank of Key West, 36 Fla. 467,
18 South. Rep. 590; Dean v. Dean, 36 Fla. 492, 18 South. Rep. 592; City of Jacksonville v. Huff, 39 Fla. 8, 21 South. Rep. 774; Hopkins v. O'Brien, 57 Fla. 444, 49 South. Rep. 936; Sarasota Ice, Fish Power Co. v. Lyle Co., 58 Fla. 517, 50 South Rep. 993; Ferrell v. Forest Inv. Co., 73 Fla. 191, 74 South. Rep. 216; Simpson v. First Nat. Bank of Pensacola, 74 Fla. 539,77 South. Rep. 204; Lewter v. Price, 25 Fla. 574, 6 South. Rep. 439; Davidson v. Collier, 75 Fla. 783, 78 South Rep. 983; Cobb v. Cobb, 82 Fla. 287, text 290, 89 South. Rep. 869; Viser v. Willard, 60 Fla. 395, 53 South. Rep. 501.
The petition for a rehearing is denied.
ELLIS C. J., AND WHITFIELD, TERRELL AND BUFORD, J. J., concur.
STRUM AND BROWN, J. J., dissent.
