In a per curiam opinion handed down by this court on January 19, 1940, the majority of the court held that the trial court committed no error in sustaining the motion to dismiss the bill as to the defendant, Clifton C. Taylor, and in granting the motion to transfer the cause to the law court, the Civil Court of Record of Dade County, *Page 399 for proper proceedings in said court against the other defendants. The reasons given for this decision was that after the Court had properly granted the motion to dismiss the cause as to the defendant Taylor, the plaintiff only sought relief for damages against the other defendants. Upon this theory the order appealed from was affirmed in toto.
On rehearing granted, a majority of the court finds that in rendering the opinion and decision of January 19, 1940, the court overlooked the fact that in his bill the plaintiff, in addition to seeking an accounting and monetary relief for the damages which he had sustained from the alleged fraud which was practiced upon him, also prayed for the rescission and cancellation of the written contract for the purchase of the automobile from defendant Donaldson, which contract was under seal. This was an independent ground of equitable relief which made it improper for the trial court to transfer the cause to the law court, as there was still equity in the bill. See Pepple v. Rogers, 104 Fla. 462, 140 So. 205; Willis v. Fowler,102 Fla. 35, 136 So. 358; Nixon v. Temple Terrace Estates,97 Fla. 392, 121 So. 475.
The allegations of the bill are reviewed in the dissenting opinion filed by Mr. Justice CHAPMAN at the time this case was originally decided, as above set forth. This leaves only one point of difference between said dissenting opinion and the conclusion now arrived at, and that is that the majority of the Court are still of the opinion that the trial court was correct in sustaining the motion to dismiss the bill as to the defendant Taylor. Otherwise the Court now agrees with the dissenting opinion filed by Mr. Justice CHAPMAN when this case was handed down on January 19, 1940.
The reason why the majority of the Court are of the *Page 400 opinion that no error was committed in dismissing the bill as against the defendant Taylor is that the bill contains no charges whatever of any fraud on the part of Taylor, and it appears that Taylor was an innocent purchaser for value from Donaldson, an automobile dealer, of the car which plaintiff had traded in to Donaldson as a part payment on the car which plaintiff purchased from Donaldson. Although plaintiff was a minor, nevertheless when he thus placed the car in the hands of an automobile dealer, necessarily knowing that such dealer would endeavor to sell it to some one, he is estopped from pursuing Taylor, who later purchased it, and who, so far as the allegations of the bill are concerned, had no notice or knowledge whatever of the alleged fraud which had been practiced upon plaintiff. When a person purchases a car from a licensed automobile dealer, who has the automobile along with others for sale, he has the right to believe that the dealer can convey him a good title and it is not incumbent upon him to inquire of the dealer as to the bona fides of the transaction by which the dealer acquired the automobile. We realize that there is some conflict in the authorities on this question where, as here, a minor is involved, but we are impressed with the fact that under the circumstances set forth in the bill the plaintiff was not entitled in equity to any relief as against the defendant Taylor, under the allegations contained in his bill.
The majority of the Court therefore adheres to its formerper curiam order sustaining the motion to dismiss the bill as to the defendant Taylor, but our former order is vacated and set aside in so far as it affirmed the action of the court below in transferring the cause to the law court for further proceedings against the other defendants. The chancellor's order transferring the cause to the Civil Court of Record is reversed. *Page 401
Affirmed in part and reversed in part.
TERRELL, C. J., WHITFIELD and BUFORD, J. J., concur.
CHAPMAN, J., adheres to dissenting opinion filed January 19, 1940.
Justice THOMAS not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.