Scott v. City of Venice

• Decision Date: 24 April 1936
• Parties: SCOTT v. CITY OF VENICE et al.
• Court: Florida Supreme Court

167 So. 654

123 Fla. 772

SCOTT v. CITY OF VENICE et al.

Florida Supreme Court, Division A.

April 24, 1936

Bill by Stiles Scott against the City of Venice and others. From an order denying motions to strike the answer and also a certain exhibit, plaintiff appeals.

Reversed in part, and remanded. Appeal from Circuit Court, Sarasota County; Paul C. albritton, judge.

COUNSEL

C. L McKaig and James E. Kirk, both of Sarasota, for appellant.

Winder H. Surrency, of Sarasota, for appellees.

OPINION

PER CURIAM.

The appellant, plaintiff in the court below, filed a bill of complaint against the defendant, appellee here, for the specific performance of an alleged contract on the part of the city to sell and convey to the plaintiff a certain parcel of land. The defendant filed an answer which had attached thereto as Exhibit B a certified copy of the minutes of several meetings of the city council, consisting in all of 58 pages. The plaintiff interposed a motion to strike each and every paragraph of the answer and also a motion to strike Exhibit B. The court made an order denying both of said motions, and from this order the appeal was taken. The facts alleged in the pleadings are unusual and not likely to occur again. We therefore deem it unnecessary to lengthen this opinion by attempting to summarize the facts. While the question presented to the lower court was a rather close one, on the facts as alleged, we are not convinced that the chancellor was in error in overruling the motion to strike the answer.

The enforcement by a court of equity of a specific performance of a contract is not a matter of right in either party to such contract, but a matter for the exercise of a sound judicial discretion by the court, and should only be exercised when a decree for specific performance would be strictly equitable as to all the parties under the facts as they exist, and unless it clearly appears that the chancellor has erred in his decree in refusing a specific performance, it will not be reversed on appeal. Murphy v. Hohne, 73 Fla. 803, 74 So. 973, L.R.A.1917F, 594; Dale v. Jennings, 90 Fla 234, 107 So. 175. Here the appeal is not from a final decree but the refusal of the chancellor to strike the answer was in effect to hold that the facts alleged in the answer constituted a good defense as against a bill for specific performance of the contract.

The motion of plaintiff to strike Exhibit B, which was attached to and made a part of the answer, should in our opinion have been granted. This exhibit...