Tussing v. Smith

Per Curiam. — The appellee, M. A. Smith, as Liquidator of the Dade County Security Company, filed a bill of complaint for the foreclosure of a mortgage upon certain real estate. The appellants, O. E. Tussing and Charlotte Tussing, filed their answer admitting the execution of the notes and mortgage, but denying the defaults as alleged in the bill of complaint. They averred that the terms and conditions of the notes and mortgages were abrogated and superseded by an agreement entered into between the appellants and one Frank A. Chase, as Assistant Liquidator of the Dade County Security Company. They further averred that it was agreed that an appraisement of the property would be made and an adjustment of the loan would be made on the basis of such appraisement. The appellant testified that the appraisement was made and the loan was adjusted on the basis of $750.00 to be paid out of the rents and profits from the property and that he, in return, agreed to pay the taxes and insurance thereon and place the property in a habitable condition. The appellant further testified that Chase agreed that he would recommend the acceptance of this agreement. The answer averred and Tussing testified that he complied with this agreement until it was repudiated by Chase.. The principal question involved in this cause is whether the trial court erred in holding that: “The alleged oral agreement attempted to be set up by the defendant, O. E. Tussing, * * * is not a valid and binding agreement, as it appears * * * that said alleged agree *580 ment was not in writing, no consideration was given therefor; that the said Frank A. Chase had no authority to enter into said agreement and that said alleged agreement was never approved by either the Comptroller of the State of Florida or confirmed by the Circuit Court * * *.” In Tischler v. Kurtz, 17 So. 661, 35 Fla., page 332, this' Court, speaking through Mr. Justice Mabry, said: “We are of the opinion that the prevailing view in America following the common law is that a covenant or contract under seal cannot be modified before breach by a parol executory contract.” (Citing numerous authority.) In Moses, et al., v. Woodward, et al., 147 So. 690, 109 Fla. 349, page 362, this Court further held that: “The rule is well settled that an executory or parol agreement will not be permitted to abrogate or modify a written or sealed instrument, but this rule is' not without its exceptions. A written contract or agreement may be altered or modified by an oral agreement if the latter has been accepted and acted upon by the parties in Such a manner as would work a fraud on either party to refuse to enforce it.” . . In the instant case the defendant was only doing that which he was already bound to do in paying the taxes, the insurance and in paying his mortgage indebtedness to the complainant. The making of repairs on the mortgaged premises would certainly ■ enhance the value thereof and thereby benefit the complainant by increasing its security, but it would principally and primarily benefit the defendant as he held the fee simple title to the property and was receiving the emoluments, whereas previously the property was in a state of deterioration. The refusal to enforce this agreement would not work an injustice to either party and was correctly held by the chancellor to be unenforceable. *581 Further, Section 6102, C. G. L. of Florida, 1927, states ‘ that: “Such receiver, under the direction and supervision of the Comptroller, shall take possession of the books * * * etc., and upon the order of the court of competent jurisdiction may sell or compound all bad or doubtful debts * * *. etc.” The alleged agreement would fall under the above provision which contemplates that the Liquidator shall make settlements and adjustments; but that before he can bind the concern in liquidation he must have an order from a court of competent jurisdiction. In the instant case it does not appear from the record that the Comptroller ever gave his approval; nor was the same ever confirmed by the Circuit Court. The complainant did not hold Chase out as clothed with authority to make such an agreement, he was merely an employee of the State and under its supervision. When Chase told Tussing that he would recommend an acceptance of this agreement it was the duty of Tussing to see that he obtained it if he desired to hold the company liable. Finding no reversible error in the decree, it is hereby affirmed. Whitfield, C. J., and Brown and Davis, J. J., concur. Ellis, P. J., and Terrell and Buford, J. J., concur in the opinion and judgment.