[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 476 The appellants, whom we will refer to as the lessees, and the appellee, whom we will refer to as the lessor, under date of April 15, 1930, entered *Page 477 into a written agreement, "wherein the Lessor leased to the Lessees a hotel building, known as THE LONDON ARMS HOTEL, located at Miami Beach, Florida, for a period of three years after November 1st, 1930. The Lessor agreed to deliver possession of the property to the Lessees on November 1st, 1930. The Lessees agreed to pay to the Lessor, as rental for the property forty-five thousand dollars ($45,000.00). Five thousand dollars ($5,000.00) of the rental was paid upon the execution of the agreement, ten thousand dollars ($10,000.00) was payable on November 1st, 1930, seventy-five hundred ($7500.00) on February 15th, 1931, fifteen thousand dollars ($15,000.00) on November 1st, 1931, and seventy-five hundred dollars ($7500.00) on November 1st, 1932. The ten thousand dollars ($10,000.00) payable on November 1st, 1930, was paid November 3rd, 1930, the date upon which the Lessees went into the possession of the leased property. In the agreement of lease, the Lessor covenanted as follows (Tr. 17): 'that it will paint the woodwork, walls and ceilings of the sleeping rooms and halls of the premises and will complete the solarium on half of the roof in the following manner on or before November 1st, 1930: to-wit: to build a slat wooden floor with a six-foot partition in the middle and a four-foot screen on the outside, pipe and canvas to be approved by the Building Inspector.' "
The agreement also contains among others, the following provisions:
" '10. That the lessees have examined and know the condition of the premises and will receive and accept same in its present condition on November 1, 1930, with the exception of the painting and completion of the solarium as herein provided for.' "
On March 25th, 1931, in a suit theretofore commenced in Dade County, Florida, by the lessees, complainants filed their amended bill of complaint for specific performance *Page 478 of certain covenants of the lease alleged to be binding upon the lessors, and for an injunction restraining the lessor from bringing summary ouster proceedings for the non-payment of the installment of rent in the amount of $7,500.00 which became due and payable on February 15, 1931. A demurrer to the amended bill was filed the said 25th day of March, and on the same day an order of the court was filed overruling the demurrer and temporarily restraining the lessor from "enforcing a forfeiture of the lease, described in the amended bill, for non-payment of the Seventy-five Hundred ($7500.00) Dollar installment of rent due to the Defendant on the 15th day of February, A.D. 1931, as described in the amended bill, and from filing proceeding at law, or otherwise interfering with the possession by the Complainants of the premises described in the amended bill of complaint and in the said lease; PROVIDED that the said Complainants shall first pay into the registry of this Court to the Clerk thereof, subject to the further orders of the Court in this cause, the said sum of Seventy-five Hundred ($7500.00) Dollars, on or before the 25th day of March, A.D. 1931," and providing also for the filing of a bond before the injunction should become effective. The said sum of $7500.00 was paid into the registry of the Court and the said bond was given pursuant to the terms of the order. On the 3rd of April, the lessor filed a motion to dissolve the injunction and on the 6th day of April, 1931, the lessor filed an answer to the bill. The motion to dissolve the injunction came up for a hearing and thereupon the Court, on May 13, 1931, ordered and decreed that the said injunction be dissolved and set aside. From this order the lessee appealed to this Court. The appeal did not stay the suit, so the cause proceeded to a final hearing after it had been referred to a Master before whom a great volume of testimony *Page 479 was taken. The final decree omitting the names of the parties, reads as follows:
*Page 480"The above styled and entitled cause comes on before this court for final hearing and upon exceptions filed by the complainants to the report of the master, and upon defendant's petition for an order requiring the Clerk of this Court to pay to the defendant the Seventy-five Hundred Dollars ($7500.00) now in the registry of this court in this cause, and argument of counsel for the respective parties having first been had, and the court being fully advised in the premises, it appears unto the court that said bill is without equity, (which makes it unnecessary to consider the master's report and exceptions thereto) and it further appearing unto the court that there is paid into the registry of this court the sum of Seventy-five Hundred Dollars by the complainants herein as an installment of rent due the defendant on the 15th day of February, 1931, and that same has been paid into court pursuant to an order of this court made on the 24th day of March, 1931, and that said payment was made as appears by said order subject to the further orders of this court in this cause,
IT IS CONSIDERED, ORDERED, ADJUDGED AND DECREED that
(1) Said cause be and the same is hereby dismissed without prejudice, however, to the rights of the parties;
(2) That the said sum of Seventy-five Hundred Dollars ($7500) deposited in the registry of this court be paid by the Clerk of this Court on or after the 1st day of February, 1932, to the London Operating Company to be applied upon that installment of rent falling due on the 15th day of February, 1931, as described in said bill of complaint and amended bill;
(3) That the defendant, The London Operating Company, a Florida corporation, do have and recover of and from the complainants, Harry Masser, sometimes called Harry Messer, and Morris Baron, the cost of these proceedings, to be hereafter taxed."
From this decree the lessees took an appeal. At the request of appellants, the two appeals have been consolidated here and argued together.
Upon the appeal from the interlocutory order appellants have assigned as error the ruling of the court in dissolving and setting aside the temporary injunction theretofore granted. Upon the appeal from the final decree the appellants have assigned as error the making of said decree; the order dismissing the cause, and also "its order of final decree in that it was error for the Court to direct the clerk of the court to pay to the LONDON OPERATING COMPANY, on or after February 1st, 1932, the sum of $7,500.00, deposited in the registry of the court by the complainants, which sum as directed by the Court was to be applied upon the installment of rent falling due on February 15, 1931, as described in the Amended Bill of Complaint."
If the bill as amended is without equity, and no error was committed by the court in dismissing the cause for that reason when it came up for final hearing, it follows that the order dissolving the said injunction from which the first appeal was taken, should be affirmed.
In the brief filed here in support of the appeal from the final decree, the able solicitor who signed it says:
"I cannot argue with conviction that the chancellor below erred in dismissing the cause, upon the sole ground that the amended bill is without equity, although the appellee's demurrer to the amended bill had been previously overruled by another judge and the cause had progressed to a final hearing after the taking of the proofs. It will not be my purpose, therefore, to argue the appellant's first or second assignment of error, both of which are predicated upon the dismissal of the amended bill for want of equity."
But he also says:
"It is well to state, however, that my associate counsel entertain the conviction that the amended *Page 481 bill does state a cause for equitable relief; but it is unnecessary for them to file another brief upon this appeal because their views are fully set forth in a brief filed in this Court upon another appeal, which was from an interlocutory order in the cause."
Since the question raised upon the appeal from the interlocutory decree is not argued by appellants to sustain the appeal from the final decree, we deem it best to decide whether or not the Court erred in dissolving the temporary injunction.
Upon the appeal from the interlocutory decree, lessees contend merely that the lessor breached its covenant to paint, resulting in damage to the lessees, that the lessor threatened to commence summary proceedings to oust the lessees from the property for the non-payment of rent, and that an action at law for damages is not adequate relief to lessees.
It has been declared repeatedly by this Court, that the granting and dissolving of temporary injunctions lies in the sound discretion of the Court. See I.R.S. Co. vs. E. C. Tr. Co., 28 Fla. 387, 10 So.2d 480, 29 A. S. R. 258; Shaw v. Palmer,54 Fla. 490, 44 So.2d 953; Godwin vs. Phifer, 51 Fla. 441,41 So. 597; Thursby vs. Stewart, 103 Fla. 990, 138 So.2d 742.
Before the temporary injunction was granted, certain testimony was taken before the chancellor, and certain affidavits were filed in the cause before him. The lessor filed its answer to the bill before the motion to dissolve the said injunction was heard. This answer which was sworn to, took sharp issue with the allegations of fact set out in the bill, and particularly denied the allegations relating to a breach of lessor's covenant to paint the woodwork, walls and ceilings of the sleeping rooms and halls, and also the allegations relating to threatened summary proceedings to oust lessees from the premises. Under such circumstances where an application is made to dissolve *Page 482 an injunction, though the bill may not be without equity, the chancellor must be governed by the weight of the evidence, and unless his ruling is clearly against the weight of the evidence, it will not be reversed on appeal. See Baya vs. Lake City, 44 Fla. 491, 33 So.2d 400; Richardson vs. Kittlewall,45 Fla. 551, 33 So.2d 984; High vs. Jasper Mfg. Co., 57 Fla. 437,49 So.2d 156; Ogden vs. Baile, 69 Fla. 458, 68 So.2d 671.
Here, even though we should hold that lessees have a right to withhold a due payment of rent where, because of a violation of the covenant to paint the woodwork, walls and ceilings of the sleeping rooms and halls, a question we do not at this time decide, and that they are entitled to an injunction where summary process for the removal from the property is threatened because of their refusal to pay rent, we cannot say that the order dissolving the injunction was against the weight of the evidence that was before the Court. It follows that the interlocutory order dissolving the injunction must be affirmed.
Since the only question argued here in the brief of appellants upon the appeal from the final decree is involved in the assignment of error addressed to that part of the decree which directed the Clerk of the Court to pay to the lessor the said sum of $7500.00 deposited in the registry of the Court by the lessees, we will not consider any other question upon such appeal.
In and by their bill the lessees offered and thereby tendered into the registry of the Court $7500.00 in cash, "so that the lessor will be secured for the payment of the sum of money which is due to it, the said sum of money to be held in the registry of the Court at the direction and order of the Court as may seem proper and meet to this Honorable Court," and they prayed that *Page 483 they be permitted to deposit the said sum in the registry of the Court.
The prayer asks for an accounting and that "such amounts as are found to be due to your complainants shall be deducted from the amount paid into the registry of the Court and the balance delivered to your defendant." The cause was dismissed because it was determined and declared by the Court that the "bill is without equity," and it is conceded by appellants that the decree is proper in that respect. Now, the question arises, did the Court commit error in decreeing that the said sum of $7500.00 be paid to the lessor to be applied upon the installment of rent which was due on February 15, 1931?
The bill indicates that the lessees had a claim for unliquidated damages growing out of alleged violation of certain covenants of the lessor, the amount of which they desired to have the Court assess and deduct from the said sum of $7500.00, and that they deposited the money in the registry of the Court with authority to the Court, after deducting the amount found to be due the lessees, to deliver the balance to the lessor.
It is the contention of appellants that the decree in effect gave the defendant, the lessor, a judgment for $7500.00 for rent due February 15, 1931; that the money was deposited as a condition precedent to the obtaining of certain relief and not as a tender to satisfy the lessor's claim for rent, and that the decree, in effect, says to the complainant: "We have taken your money and will not return it to you, nor will we give you any of the relief you have sought."
It appears from the bill that a tender of the money was not made for the purpose of meeting the installment of rent due on the 15th day of February, 1931, in the event the suit should be dismissed, but that it was *Page 484 deposited with the intention, as we gather it from the allegations of the bill, of having the differences apparently existing between lessor and lessees adjusted, and that such sum be held at the "direction and order of the Court as may seem proper and meet." One of the conditions imposed by the Court for the issuance of the injunction, was the payment of said sum of $7500.00 into the registry of the Court, "subject to the further orders of the Court." This condition was imposed, no doubt, because of the offer contained in the bill.
In the light of what is shown by the bill, we cannot ascribe to the Court the intention, when the injunction order was made, to summarily dispose of the said sum of $7500.00, in the event the cause should be subsequently dismissed, without an accounting and assessment of damages, if any, sustained by lessees. The bill could well be without equity and yet the lessees could have a claim against the lessor enforceable in an action at law.
We do not understand that the Court, without the consent of the lessees, had the right, in this proceeding, to decree that the said sum of money be paid to the lessor to be applied upon the installment of rent that fell due on February 15th, 1931. The lessees offered to do equity by offering to pay money into the registry of the Court and have the Court deduct therefrom such amount as the Court might find upon an accounting was due them, and after making such deductions, deliver to the lessor the balance. Before making effective the order for an injunction, the Court required lessees to comply with the terms of the offer. However, no accounting was had because the cause was dismissed for the reason that the bill was without equity. The cause having been dismissed for want of equity in the bill without accomplishing the purpose for which the money was offered as a deposit, the Court was without authority to make and enter a *Page 485 decree in this proceeding that said sum be paid to the lessor. It follows that the Court committed error in making such a decree.
As a general rule, the payment of money into Court passes the title to the money so paid irrevocably to the party to whom it is tendered though he does not accept the tender, or does not accept it until after judgment has gone against him. 26 R. C. L. 656; Mann vs. Seneca Sprout, 185 N.Y. 109, 77 N.E. 1018. 5 L.R.A. (N.S.) 561 and note, 7 Ann. Cas. 95; Sims vs Hardin,132 Miss. 137, 95 So.2d 842; Fox vs. Williams, 92 Wis. 320,66 N.W. 357; Supply Ditch Co. vs. Elliott, 10 Colo. 327,15 P. 691, 3 A. S. R. 586; Ye Sang Co. vs. Corbitt, 7 Sawy. 368, 9 Fed.; Coghlan vs. S. Car. R. Co., 32 Fed. 316; Parker vs. Beasly, 116 N.C. 1, 21 S.E. 955, 33 L.R.A. 231; Note 73 A.L.R. 1281; Stolze vs. Milwaukee, etc. R. Co., 113 Wis. 44,88 N.W. 919, 90 A. S. R. 833; 38 Cyc. 176.
When, however, a party seeking affirmative relief has paid money into court upon condition that the party paying received something in return therefor, or that a contingency happen, it cannot be delivered to the adversary party until the condition upon which it was paid has been performed, or the contingency occurs. The proposition is well stated in 26 R. C. L. 658, as follows:
When one is not defending against a claim but is seeking affirmative relief to which, as a condition precedent, it is essential that he tender an amount due, the payment of the money tendered into court does not transfer the title to the other party, but it remains in the one making the tender subject to the final outcome of the suit. To hold otherwise would make the payment of money into court under the circumstances an exceedingly dangerous trap for one to enter, for, if he failed in the action, he would not only lose the right which he claimed but would also lose the *Page 486 money which he paid into court for the purpose of enforcing his right."
See also 18 C. J. 775; Levin vs. Goodman, (N.J.) 153 A. 476, 73 A. L. R. 1278 and Note page 1286; Dunn vs. Hunt, 76 Minn. 196, 78 N.W. 1110.
The lessor assigned as cross error the dismissal of the cause "without prejudice," their contention being that it should have been dismissed with prejudice.
"It is within the sound judicial discretion of the chancellor to dismiss without prejudice a bill of complaint in equity, thereby enabling the complainant to relitigate the matter in controversy, and an appellate court will not adjudge such ruling to be error, unless it is made clearly to appear that the judicial discretion thereby exercised has been abused to the material detriment of the party affected by the ruling."
Phillips vs. Lindsay, 102 Fla. 935, 136 So.2d 666; Veillard vs. City of St. Petersburg, 87 Fla. 381, 100 So.2d 163; Tilgham Cypress Co. vs. Young Co., 60 Fla. 382, 53 So.2d 939; Meffert vs. Thomas, 51 Fla. 492, 40 So.2d 764.
While every dismissal upon a final hearing is not necessarily an adjudication on the merits, yet the rule is that where the cause is at issue, and on final hearing, either upon pleadings and testimony, after the time for taking testimony has expired, a dismissal of the bill by the Court is deemed to be a dismissal upon the merits; this being a conclusive presumption from the record, where the order is not made "without prejudice," and nothing appears to show that the dismissal was on other grounds. Da Costa vs. Dibble, 40 Fla. 418, 24 So.2d 911. See also 34 C. J. 792.
A decree rendered on a demurrer is equally conclusive, by way of estoppel, of the facts confessed by the demurrer, as would be a decree containing a finding of the same facts. 34 C. J. 797, 799. See also Prall vs. Prall, 58 Fla. 496, 50 So.2d 867, 26 L.R.A. (N.S.) 577. *Page 487
A dismissal without prejudice is generally proper wherever the case has been disposed of for a reason not reaching the merits, and it is probable that the plaintiff might be able to make out a good case. 21 C. J. 639; Deem vs. Thomas, 51 Fla. 644, 40 So.2d 765; Meffert vs. Thomas, 51 Fla. 492, 40 So.2d 764.
The lessor concedes that the bill is without equity and that the decree dismissing the cause for that reason was proper. The appellees agree that the cause should have been dismissed, but say it should not have been dismissed without prejudice. Therefore, we may well assume that there is no equity in the bill.
A bill will be dismissed at final hearing, if it is without equity, even though a demurrer thereto has been overruled, or no objection has been taken by the defendant in his pleadings. 21 C. J. 636.
It is the rule that even after a case has been brought here, this Court can take notice of the insufficiency of a bill of complaint, though it has not been noticed by the defendant in the lower court, and direct a dismissal of the bill. Norris vs. Eikenberry, 103 Fla. 104, 137 So.2d 128; Cook vs. Pontious,98 Fla. 373, 123 So.2d 765; Micou vs. McDonald, 55 Fla. 776,46 So. 291; City of Jacksonville vs. Massey Business College, 47 Fla. 339, 36 So.2d 432; Williams vs. Peeples, 48 Fla. 316, 37 So.2d 572; Hendry vs. Whidden, 48 Fla. 268, 37 So.2d 571; McNeill vs. Lyons,140 So.2d 921.
The action of the court in the instant case in dismissing the cause was tantamount to a reconsideration and reversal of its action on the demurrer to bill.
For a breach of a lessor's covenant, the lessee may have an action at law for his damages. 36 C. J. 795; Annotation 28 A.L.R. 1450.
The allegations of the bill show a probable right of *Page 488 lessees to an action at law against the lessor for breach of covenant.
The Court having concluded that "the bill is without equity (which makes it unnecessary to consider the Master's report and exceptions thereto)," no abuse of sound judicial discretion of the Chancellor in dismissing the cause without prejudice has been shown. See Boyd vs. Hunter, 104 Fla. 561, 140 So.2d 666.
The cause is remanded to the lower court with directions to reform its final decree so that it will conform to the views herein expressed.