Howard Cole & Co. v. Williams

• Decision Date: 02 August 1946
• Court: Florida Supreme Court
• Parties: HOWARD COLE & CO., Inc., et al. v. WILLIAMS et al.

27 So.2d 352

157 Fla. 851

HOWARD COLE & CO., Inc., et al. v. WILLIAMS et al.

Florida Supreme Court

August 2, 1946

Rehearing Denied Sept. 17, 1946.

George J. Baya, of Miami, and Treadwell & Treadwell of Arcadia, for petitioners.

Mabry Reaves, Carlton, Anderson & Fields, of Tampa, for respondents.

BUFORD, Justice.

On the 15th day of October, 1945, respondents filed their bill of complaint in the Circuit Court of Highlands County, Florida, against Howard Cole & Company, Inc., and others seeking specific performance of an option to purchase certain real estate therein described, which option was contained in a lease contract.

Motions to dismiss the bill of complaint as amended were filed by the several defendants. All such motions were denied and overruled and thereupon the several defendants applied for certiorari under our Rule 34 to review the order denying the several motions to dismiss. Thus we are to determine the legal sufficiency of the bill of complaint. The allegations of the bill of complaint show the pertinent facts as hereinafter set forth as facts of the case.

The contract was executed between Howard Cole & Co. Inc., and other parties, as parties of the First Part, and one Fitz Williams Party of the Second Part. At the time the contract was executed there was a certain suit pending in the Circuit Court of Highlands County, Florida, between Howard Cole &amp Co., Inc., et al. v. Miami Bank & Trust Co. involving the title to the said land and in which suit George J. Baya had intervened seeking to impress a lien upon the land to satisfy a judgment, which he then held by assignment, against the predecessors in title of Howard Cole & Co., Inc., et al. The contract was executed on the 22nd day of April, 1938, and contained the following provisions pertinent here:

'That Whereas the Parties of the First Part claim to be owners in fee simple of the hereinafter described lands, and have instituted suit in the Circuit Court of the Tenth Judicial Circuit in and for Highlands County, Florida, to quiet title, same being Case No. 4918, styled Howard Cole & Co., Inc., et al. v. Miami Trust Co., a corporation, et al and

Whereas, final adjudication of the chancery cause aforesaid will determine whether or not the parties of the first part will be able to convey the land hereinafter described.

'Now, Therefore, the parties hereto, for and in consideration of One ($1.00) Dollar, each to the other in hand paid, the receipt whereof being hereby acknowledged, and for and in consideration of the covenants and agreements herein, mutually covenant and agree as follows, to-wit:'

and also the following:

'2. Such lease to be in full force and effect from date hereof until final adjudication by court of competent jurisdiction of the chancery cause hereinbefore set forth by style and number, pending in Highlands County, Florida, which said final adjudication shall include ruling by Supreme Court of the State of Florida, on appeal, if appeal be taken therein, favorable decision by the Supreme Court of Florida and the expiration of time for petition for rehearing thereon (assuming favorable ruling on behalf of complaints in said cause.)

'3. The party of the second part covenants and agrees that in the event parties of the first part are unsuccessful in chancery cause aforesaid, to surrender up leased premises aforesaid within ninety (90) days after notice from parties of the first part and to remove all cattle from said lands promptly in compliance with said notice. The party of the second part to have the right to remove such fence as he shall place or erect on said land.

'4. The parties of the first part, for and in consideration of this contract and the covenants and agreements therein contained, and for and in consideration of the further sum of Ten ($10.00) Dollars to them in hand paid by the party of the second part do hereby give the said party of the second part, his heirs and assigns, the privilege of purchasing the hereinbefore described lands at and for the purchase consideration of One and 50/100 ($1.50) dollars per acre, or such portion of hereinbefore described lands as title to which shall be found marketable as hereinafter provided. Such option shall extend from date hereof until final adjudication of chancery cause aforesaid, as hereinbefore provided. Upon favorable final adjudication of said chancery cause the parties of the first part covenant and agree to deliver to party of the second part full and complete abstract of title showing such final adjudication, and the party of the second part is to be permitted a period of thirty (30) days after delivery of said abstract of title certified to such time within which to examine said title and exercise his option of purchase hereunder.

'5. The party of the second part, for himself, his heirs and assigns, covenants and agrees with the parties of the first part to purchase said lands at the price and on the terms and conditions hereinafter set forth, provided the parties of the first part are able to convey a marketable title to said lands within five (5) years from the date hereof. In the event the parties of the first part are not able to deliver a marketable title on or before five (5) years from the date hereof, the party of the second part shall not be obligated to purchase said lands, but the privilege hereunder given to the party of the second part to purchase said lands shall, at the option of the party of the second part, continue in full force and effect after such five (5) year period from year to year until parties of the first part are able to deliver a marketable title. The party of the second part shall notify parties of the first part of his election to extend option period by letter addressed to W. E. Dunwody, of Arcadia, Florida, as Agent for parties of the first part. During such extension at option of party of the second part, the terms of this contract shall be obligatory upon each of the parties hereto. If the parties of the first part are unable to deliver a merchantable fee simple title to said lands as herein contracted for, through adverse ruling in chancery cause aforesaid, then this contract shall be at an end and the parties hereto relieved of all liability hereunder.'

A final decree was entered by the Circuit Court on November 26, 1943, and filed for record on November 29, 1943. That decree was amended on the 26th day of January, 1944, and adjudicated title to the land involved to be in the plaintiffs Howard Cole & Company, Inc., and others, who were parties of the first part to the lease contract and option, but that such title was held as to 72% interest therein subject to the lien of the judgment held by George J. Baya dated January 30, 1929, in the principal sum of $20,904.24 together with $40.52 costs and $20,315.68 as interest and ordered the plaintiffs to pay to Baya the full amount of the judgment and costs together with 6% on the amount of the decree from date thereof and in default of such payment, ordered 72% of the said lands to be sold to satisfy the said judgment.

On January 27, 1944, the plaintiffs appealed from the said judgment and assigned errors and the intervenor, George J. Baya, filed cross assignments of error on that appeal. Both the plaintiffs and the intervenor filed directions of the Clerk for making up the record.

The appeal stood in status quo until the 30th day of April, 1945, when the plaintiffs and Baya finished composing their differences and entered into a stipulation whereby the issues become moot and whereby it was agreed that the appeal should be dismissed at the cost of the appellants.

On May 7, 1945, appellant filed in this Court certified copy of the notice of appeal and a praecipe for the dismissal of the appeal. The appeal was dismissed by this Court by its Order on May 19th 1945.

Under the terms of the option agreement contained in the lease supra, Williams gave the notice required by paragraph 5 of the contract to be given on or...