Perry v. Shaw , 152 Fla. 765 ( 1942 )

Reluctant as the writer is to appear critical of the opinion and judgment reached by a majority of the Court, I earnestly believe the Court is committing us to erroneous principles of law and binding the parties to an unjust judgment. The writer is of the opinion that the chancellor entered a proper decree and that same was abundantly sustained by the evidence.

In reality we are dealing with two parties; Henry Shaw and Charles Perry. The latter acting in a dual capacity, individually, and as trustee.

In 1933 (at the bottom of the depression) Perry was the owner of distressed property, namely a golf course. He solicited money, credit and effort of Shaw. An agreement was reached by the two. A corporation was formed. Perry leased the golf courses to the corporation. The lease was assignable by the lessee. Both parties were stockholders and officers. Perry was president and actively employed by the corporation. In 1937 the corporation was dissolved by operation of law for failure to pay its charter tax. The parties started to procure a new charter and considered proceedings for reinstatement of the old one but did neither. However, they continued to operate under the corporate name of the business just as before until April 3, 1940, when Perry filed suit as trustee against Shaw and others to conclude the business, pay the debts and divide the remaining assets among the stockholders. It was alleged that the leasehold interest was one of the corporate assets.

On April 30, 1940, Perry, by permission of court, intervened individually and took the position that when the charter was forfeited the lease was breached and he could and did now elect to declare it of no effect. This contention is now approved by a majority of the Court.

The law of anticipatory breach of contract was sanctioned at common law and has long been approved in Florida. See Gilliland v. Mercantile Inv. Holding Co., 147 Fla. 613, 3 So.2d 148 and cases there cited. However, such law does not apply to this case since the lease is an assignable asset and will inure to the creditors and stockholders in equity.

In 32 Am. Jur., page 704, par. 827:

"Dissolution of Corporate Party to Lease. — The Common-law doctrine that upon the dissolution of a corporation, its real estate reverted to the grantor, its personal estate vested in the Crown, and all debts due to and from it were extinguished by operation of law is now virtually obsolete in this country, and our courts have generally held that a lease to a corporation is not terminated by the dissolution of the corporation. It would seem that the lessor would have a claim against the assets of the dissolved corporation for rentals to accrue after the dissolution."

In Vol. 16, Fletcher Cyclopedia Corporations, page 864, par. 8124:

"A lease to a corporation may, by its terms, terminate where the corporation ceases to exist. But unless the lease so provides, the rights and obligations thereunder are not extinguished by the corporation's dissolution, since leases affect property rights and survive the death of the parties. The stockholders succeed to the rights and liabilities of the dissolved corporation in an unexpired leasehold estate, and the obligation to pay rent, in accordance with the terms of the lease, may be enforced against its receiver."

Cited by the above authors are same of the best courts in the land, among those are Massachusetts, Vermont, Virginia, Washington, New York, Oregon and the Supreme Court of United States. An exhaustive note with authorities cited is found in 17 A.L.R., page 532.

Inasmuch as our corporation statutes directs that the officers act as trustees after forfeiture, it is all the more reason why we should adhere to the above rule. When an individual dies the lessor has recourse against the personal representative. Here, where the corporate life ends, the directors, as trustees, conclude the business on principle the same as the personal representative. The United States Supreme Court has said in the case of Late Corporation of Latter-Day Saints v. United States, 136 U.S. 478, 10 S.Ct. 792,34 L. Ed. 478:

"When a business corporation, instituted for the purpose of gain or private interest, is dissolved, the modern doctrine is, that its property, after payment of its debts, equitably belongs to its stockholders. . . ."

In the case at bar both parties have submitted their claims to a court of equity and both affirm there was a valuable property right in the lease-hold. The law seems settled generally by good authority that if the common law afford no remedy the stockholders and creditors may obtain relief in equity. Folger v. Columbian Insurance Co., 99 Mass. 267, 96 Am.Dec. 747, and other cases there cited.

There is yet another reason why this decree should not be disturbed. Perry was the president of the corporation; he was devoting his entire time to its business. The golf course operated in the same status for approximately three years after actual knowledge of the forfeiture. He was the lessor. He came into court as trustee to wind up the corporate business and tendered an only issue as to the number of shares of stock owned by Shaw. In less than thirty days after filing this suit he as lessor intervened and assumed an inconsistent position from that assumed by him as trustee. The effect of his latter position is to confess his neglect to continue the corporate charter and seek to profit by his own neglect.

There is a great difference of opinion between the writer and the majority opinion. Naturally one view is erroneous. The writer is deeply conscious of his probability to err and will not prolong this in the nature of an argument however duty requires that our position be made clearly known to our colleagues. If we go further we take responsibility for causing error. I sincerely believe that an injustice has been done and an antiquated principle of law has been established which is not suitable to our jurisprudence and modern institutions.

BROWN, C.J., WHITFIELD, TERRELL and CHAPMAN, JJ., dissent.

BUFORD, J., concurs.