Steak House, Inc. v. Barnett

Decision Date12 May 1953
Citation65 So.2d 736
PartiesSTEAK HOUSE, Inc. v. BARNETT.
CourtFlorida Supreme Court

James Halley Ruby, Miami Beach, for appellant.

Roth & Faber, Miami, for appellee.

SEBRING, Justice.

The appellant was the plaintiff below. It instituted suit to rescind a contract entered into with the appellee. The trial court granted a motion to dismiss the complaint and this appeal followed.

According to the complaint and the exhibits, the plaintiff was the lessee of certain premises on which were located businesses known as the Singapore Lounge and the Fisherman's Wharf. The premises were being managed and operated by the defendant under an agreement between the plaintiff and the defendant. Prior to the agreement hereafter referred to the plaintiff had sublet certain portions of the premises to other persons.

On April 10, 1952, the plaintiff entered into an agreement with the defendant whereby (1) all prior agreements between the parties in conflict with the pending agreement were terminated and cancelled; (2) all rights and interests of the plaintiff in and to the lease and the subleases and to the furniture and fixtures on the premises were assigned to the defendant; (3) all obligations of the plaintiff under its lease and subleases were assumed by the defendant; (4) the defendant assumed and agreed to pay all indebtedness of the plaintiff up to the sum of $18,000; and (5) the defendant agreed to indemnify and hold the plaintiff harmless against any claim or claims on account of the $18,000 indebtedness.

The complaint instituted in this cause for rescission of the agreement averred performance on the part of the appellant and the failure and refusal of the assignee to pay the indebtedness of the assignor as agreed. The bill further alleged that the promise made by the assignee to pay the indebtedness 'was false and fraudulent and was known to the defendant to be false and fraudulent at the time it was made; that, in truth and in fact, at the time defendant made and entered into the said agreement he did not intend to assume and pay the indebtedness of the plaintiff * * * and that defendant made the said false and fraudulent statements and representations to plaintiff [who did not know of the falsity thereof and relied thereon] to induce plaintiff to execute the agreement.'

The bill of complaint further alleged that the plaintiff did not have an adequate remedy at law; that the defendant 'has no visible property open to attachment or levy known to plaintiff other than the subject matter hereof,' and that 'plaintiff is willing and able and hereby offers to do equity herein and to repay to defendant any amounts * * * found to be due and owing from the plaintiff to the defendant in order to place the parties hereto in the status quo existing at the time of the execution of such agreement.'

The plaintiff urges on this appeal that the court below committed reversible error in granting the motion to dismiss the bill of complaint for failure to state a claim upon which relief could be granted. The question before us is whether, assuming that the allegations of the bill are true, and that there has been a breach of the covenant in question, the plaintiff should be entitled to rescission in equity or whether it must be left to its remedy at law for damages.

As a general rule, rescission is granted for fraud as to existing fact, but not for failure to perform a covenant or promise to do an act in the future, unless the covenant breached is a dependent one. Beach v. Williamson, 78 Fla. 611, 83 So. 860, 9 A.L.R. 1438; Harrington v. Rutherford, 38 Fal. 321, 21 So. 283. See also 9 Am.Jur., p. 373. Conditions or covenants in a contract are classed as dependent or independent from a consideration of the intention and understanding of the parties as shown by the whole contract. Southern Colonization Co. v. Derfler, 73 Fla. 924, 75 So. 790, L.R.A.1917F, 744.

A covenant is independent where it does not go to the whole consideration of the contract but is only subordinate and incidental to its main purpose, and the breach of such a covenant will not ordinarily constitute a sufficient...

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39 cases
  • Hardin v. Kcs Intern., Inc., COA08-996.
    • United States
    • Court of Appeal of North Carolina (US)
    • September 15, 2009
    ...intended that the contract would not have been made with the covenant omitted.'" Id., 134 S.E.2d at 242-43 (quoting Steak House, Inc. v. Barnett, 65 So.2d 736, 738 (1953)). The Court held that "`[a] breach of such a covenant amounts to a breach of the entire contract; it gives to the injure......
  • Bavelis v. Doukas (In re Bavelis)
    • United States
    • United States Bankruptcy Courts. Sixth Circuit. U.S. Bankruptcy Court — Southern District of Ohio
    • February 22, 2017
    ...fraudulently represents that he will perform as an inducement to the other party to enter into the contract ...." Steak House, Inc. v. Barnett , 65 So.2d 736, 738 (Fla. 1953) ; Royal v. Parado , 462 So.2d 849, 855 (Fla. Dist. Ct. App. 1985). Because Doukas induced Bavelis to execute the Ass......
  • Sun Life Assurance Co. of Can. v. Imperial Premium Fin., LLC
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 18, 2018
    ...at 36–42 (relying principally on Entron, Inc. v. General Cablevision of Palatka , 435 F.2d 995 (5th Cir. 1970) and Steak House, Inc. v. Barnett , 65 So.2d 736 (Fla. 1953) ). IPF’s cited authority is inapposite. Those cases did not turn on a contract party’s secret intent not to comply with ......
  • Wilson v. Wilson, 388
    • United States
    • United States State Supreme Court of North Carolina
    • January 17, 1964
    ...and is not bound to seek relief at law by an award for damages. This rule was stated by the Supreme Court of Florida in Steak House, Inc. v. Barnett, 65 So.2d 736, in this language: 'A covnant is dependant where it goes to the whole consideration of the contract; where it is such an essenti......
  • Request a trial to view additional results
1 books & journal articles
  • Contract cases
    • United States
    • James Publishing Practical Law Books Florida Causes of Action
    • April 1, 2022
    ...Inc. v. Banks , 602 So.2d 670, 672 (Fla. 4th DCA 1992). 5. Promise to Perform Act in the Future: See Steak House, Inc. v. Barnett , 65 So.2d 736, 738 (Fla. 1953). 6. Status Quo: In granting rescission, the court should attempt to restore the parties to the status quo. Where restoration to t......

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