The petition filed by the appellees upon which a rehearing was granted states that the opinion heretofore rendered (1) misconstrues the contract involved in the suit, and (2) overlooked the right of equitable set-off set up by the amended answer.
It must be conceded that the contract between the complainant as agent and the defendant as owner of the lands in question is very complicated and its apparently conflicting terms most difficult to reconcile. It is not the province of this Court, however, to undertake to divine what was "in the mind" of either of the contracting parties. The intent and purpose must be gathered from the wording of the whole contract and reasonable constructions to be placed upon all its provisions. See Marion Mortgage Co. vs. Howard, 100 Fla. 1418, 131 So.2d 529, and number of cases there cited. *Page 437
The main ground asserted by the appellant for requesting a rehearing in this cause is that the court in its former opinion overlooked the rule giving a defendant the right of equitable set-off in cases of insolvency of complainant.
With reference to this point, it seems clear that the answer stricken by the trial court was not pleaded by the defendant upon the theory of "equitable set-off," and it does not conform to such pleas. The general rule is that in order for such a set off to be available in an equity suit it must show anexisting debt or demand against complainant in favor ofdefendant and that it arose and existed under such circumstances and it is of such a nature that it would be inequitable to disallow it. 24 R. C. L. 865, sec. 70; 57 C. J. 446, sec. 96; 57 C. J. 463, sec. 117. The above prerequisites are not supported by the averments in the answer in the instant case.
As to the "second" counterclaim or set-off, it does not appear that the defendant acquired the claims of the sub-agents upon which the alleged equitable set-off was based withoutknowledge of such insolvency, but rather to the contrary. In fact, it is shown that the claims of the sub-agents against complainants set forth in the proposed amended answer, were acquired, if at all, after Defendant had refused to make further payments to complainants, and to that extent the defendant made it more difficult for the complainant to pay any claims that might be due from them to the sub-agents.
We think it is quite clear that under the circumstances of this case that the demands of these third persons (sub-agents) who are not parties to this suit, are not available as a set-off or counterclaim in favor of the defendant, and therefore the filing of the proposed amended answer was properly refused by the trial court. The general rule is that no counterclaim will be allowed to the defendant *Page 438 which requires the bringing in of third parties who may have independent claims against the complainant. See North Chicago Rolling Mill Co. v. St. Louis Ore and Steel Co., 152 U.S. 596,14 Sup. Ct. Rep. 710, 24 R. C. L. 860, sec. 64, also 57 C. J. 447-448, and many other decisions there cited.
The petition for rehearing further states that it is uncertain from the court's opinion as to what amount defendant is entitled to retain as the net price to it from the sales of lands effected by complainant.
The answer shows that defendant mainly relied as a defense upon that part of paragraph 25 of the contract which stipulates that if during any three consecutive months after August 1, 1925, the combined sales of complainants fail to aggregate three thousand acres that "all rights of agents hereunder shall cease;" that such failure occurred April 6, 1926, and that therefore complainants were not entitled to receive any part of any payment thereafter made by purchasers who had purchased lands prior to such termination.
We held in substance that such was not the proper construction, and, as bearing out that statement called attention to the letter of defendant to complainant dated April 26, 1926, which showed that defendant did not so construe it as now contended for, at the time the incident occurred. The defendant recognized in said letter, and we have so held, that while the rights of the agents to make further sales had terminated that they were entitled to their previously earned commissions on each tract of land sold under contracts approved and accepted by defendant at not less than the minimum "sales price" of $30.00 per acre — most, if not all, of the tracts being sold upon the small installment basis.
We in substance further held that if the amount collected per acre on any contract, approved by the owners, *Page 439 did not exceed $15.00 per acre, which is the minimum "net price" guaranteed to be paid from "sales price" by complainants, that the latter would not be entitled to any of the payments made on any such defaulting contract. This would in substance mean that any of the contract price paid by the purchaser over fifteen dollars per acre would be subject to adjustment upon the apportionate basis provided for in the other portions of the contract.
Under this construction we cannot see — as stated in the Petition for Rehearing — that it is "uncertain from the court's opinion" as to "what amount the defendant is entitled to retain as the net price to it from the sales of lands." This matter at the proper time may be cleared up by the taking of testimony, if, and when that point in the proceedings is reached. In fact an accounting may show that under the above construction the defendant has fully paid complainants proportions of commissions due under each contract; likewise, if complainants have been overpaid an amended answer for counterclaim could be filed to cover such facts. The accounts are, we presume, in the custody of defendants who will be therefore held to know whether if anything, and how much, is due either party under the construction herein given.
Having reached the conclusion that the former decision rendered in this case should not be disturbed the same is hereby adhered to.