On rehearing several reasons are offered why the original opinion entered herein should be vacated and set aside but these contentions are grounded largely on questions of fact rather than principles of law. One of the fundamental questions here is: Does the bill of complaint contain equity? The lower court sustained a motion of defendants to dismiss the bill of complaint and did make and enter an order dismissing the same. The bill of complaint alleged, among other things, that the defendant, C D. Massey, on January 2, 1923, by assignment became the owner of certain judgments and executions thereon obtained of the First National Bank of Gainesville and the heirs of James M. Graham against Charles W. White and the Consolidated Chittitu Company, a corporation. These judgments and executions based thereon were assigned to C.D. Massey under two agreements dated December 30, 1922, and January 2, 1923, and signed by the defendant, C.D. Massey, and the First National Bank of Gainesville and the heirs of the late James M. Graham. These agreements created or established duties and obligations binding on the respective parties. It appears that the Grahams and the Bank, according to these instruments, had each performed their duty, respectively, thereby created and a likewise *Page 128 wise corresponding duty and obligation rested on the defendant Massey growing out of the terms and conditions thereby imposed.
After the assignment of the judgments and executions under the terms of the agreement, defendant Massey was active in his effort to obtain payment thereof as shown by a number of suits filed in Alachua and Marion Counties. Massey reduced to judgment against White personal obligations and continued his efforts to collect or reduce to cash not only his judgments against White but the judgments of the Graham heirs and the Bank, which he controlled by assignment and written agreement. The bill of complaint alleges that he was successful in his efforts by litigation or otherwise, in obtaining a settlement which was placed in contract form and signed by Massey and White, wherein White agreed and was to pay and Massey was to receive, as a result of said agreement, a sum of money not in excess of $27,500.00. That a satisfaction and accord of all claims, debts, demands, judgments and suits of every nature and kind or character which C.D. Massey had or owned against Charles W. White was signed by C.D. Massey, who at the time was the owner by assignment of the Bank and Graham heirs' judgment, and in obtaining these judgments obligated himself to pay therefor the sum of $6,000.00. Massey gave the accord and satisfaction to White and was receiving the sum of $27,500.00. The purpose of the suit at bar was to obtain an accounting of these moneys coming to him from White. The prayer sought a restraining order from a further payment of these moneys under the terms of his agreement with White, and likewise an accounting showing the amount due the Graham heirs and the Bank under the terms of the agreements wherein the judgments and executions were assigned to Massey. *Page 129
A provision of the contract dated January 2, 1923, and signed by the First National Bank of Gainesville and the Graham heirs on one part and the defendant Massey on the other, contained the following language: "Should the said Como D. Massey fail to realize on the said judgments and executions or neglect to institute and prosecute the proposed litigation, he (the said Como D. Massey) shall reassign said judgments and executions to the plaintiff herein (meaning the bank and Graham heirs), if so requested by the plaintiffs in execution." Defendant Massey controlled the judgments from 1923 continuously until August, 1934, when he obtained a written obligation from White to pay him one-third of the proceeds of recovery against the Pineapple Orange Company, which should not exceed $27,500.00. Defendant Massey continued to control these judgments until December 13, 1934, when he executed and delivered to White the satisfaction and accord. He continued to control these judgments until September 8, 1936, when the bill of complaint was filed herein. He well knew during this period that he obligated himself to pay the sum of $6,000.00 for these judgments or re-assign them to the Bank or Graham heirs. We think under these conditions and circumstances the defendant Massey should have accounted to the Bank and Graham heirs for the money or property collected under the said judgments. Campbell v. Knight, Admr., 92 Fla. 246,109 So.2d 577; Craft v. Craft, 74 Fla. 262, 76 So.2d 772; County of Escambia v. Blount Const. Co., 66 Fla. 129, 62 So.2d 650.
The bill of complaint contained equity, and if proven as required by the rules of evidence, would entitle the plaintiff to recover against the defendant Massey. The lower court erred in sustaining a motion of the defendants to dismiss the bill of complaint. *Page 130
The second question for consideration here is: Did the lower court err in denying the plaintiffs' application for a restraining order on September 22, 1936? The bill of complaint was sworn to and had a letter attached as an exhibit dated December 30, 1922, addressed to C.D. Massey at Ocala, Florida, and signed by Hampton Hampton, Attorneys for plaintiffs; likewise, an agreement dated January 2, 1923, signed by C.D. Massey, the Bank and the Graham heirs; affidavits of Lee Graham, and Fred Hampton to the effect that C.D. Massey had not paid the $6,000.00, which he had obligated himself and agreed to pay by his own written instrument dated January 2, 1923; the assignments of the judgments by the bank and the Graham heirs to C.D. Massey; a copy of the compromise agreements between Charles A. White and Como D. Massey dated August, 1934, whereby C.D. Massey was to execute a release and discharge of "all judgments, suits, accounts, or causes of action then existing in favor of C.D. Massey against Charles W. White;" a discharge "of action, suits, debts, dues, accounts, bonds, contracts, agreements, claims" * * * from Charles W. White to C.D. Massey "from beginning of the world to the date of these presents" — dated July 15, 1936; and copy of court decree by White against Pineapple Orange Company dated December 13, 1934.
The defendant filed an answer to the bill of complaint under oath on September 22, 1936, and incorporated therein a motion to dismiss. The answer admits some paragraphs of the bill of complaint and denies others. He likewise filed an affidavit on the hearing before the court below following, largely, the allegations of his sworn answer. A similar affidavit was filed by his attorney, T.S. Trantham; likewise copies of letters between counsel and the Clerk of this Court; and affidavits on the part of Hon. H.M. Hampton, of Ocala, and Hon. Martin Carraballo, of Tampa, *Page 131 Florida. Due consideration has been given to the sworn answer, exhibits and affidavits in opposition to the temporary restraining order. While such matters are addressed to the sound discretion of a Chancellor, as was said in Godwin v. Phifer,51 Fla. 441, 41 So.2d 597, it is our conclusion that the court below abused its discretion in denying the restraining order applied for.
The allowance of a temporary injunction rests in the sound judicial discretion of the trial court, guided by the established rules and principles of equity jurisprudence arising from the facts of the particular case. McMullen v. County of Pinellas,90 Fla. 398, 106 So.2d 73; Savage v. Parker, 53 Fla. 1002, 43 So.2d 507; Gillis v. State Live Stock Sanitary Board, 94 Fla. 890,114 So.2d 509; Builders Supply Co. v. Acton, 56 Fla. 756, 47 So.2d 822; Holt v. DeLoach-Edwards Co., 56 Fla. 902, 48 So.2d 1039; Allen v. Hawley, 6 Fla. 142, 63 Am. Dec. 198; McKinnie v. Dickenson,24 Fla. 366, 5 So.2d 34; Taylor v. Florida East Coast R. Co., 54 Fla. 635, 45 So.2d 574; 127 Am. St. Rep. 155, 16 L.R.A. (N.S.) 307, 14 Ann. Cas. 472; Viser v. Willard, 60 Fla. 395, 53 So.2d 501; Linton v. Denham, 6 Fla. 533.
The former opinion of this Court is adhered to on rehearing.
WHITFIELD, BUFORD and CHAPMAN, J.J., concur.
TERRELL and BROWN, J.J., dissent.