August Tobler, Inc. v. Goolsby

• Decision Date: 16 October 1953
• Citation: August Tobler, Inc. v. Goolsby, 67 So.2d 537 (Fla. 1953)
• Parties: AUGUST TOBLER, Inc. v. GOOLSBY et ux.
• Court: Florida Supreme Court

Page 537

67 So.2d 537

AUGUST TOBLER, Inc. v. GOOLSBY et ux.

Supreme Court of Florida, Division B.

Oct. 16, 1953.

Anderson & Nadeau, Miami, for appellant.

Ross & Williams, Ft. Lauderdale, for appellees.

HOBSON, Justice.

In 1952 appellees, Mr. and Mrs. Goolsby, were the owners of a tract of 215 acres of land in Broward County. In June of that year they entered an agreement with appellant, August Tobler, Incorporated, a Connecticut corporation, pursuant to which Tobler received a deed to 30 acres of the Goolsby land, and simultaneously paid $5,000 in cash and executed two promissory notes aggregating $25,000, payment of which was secured by a mortgage on the 30 acres. The first note secured by the mortgage was payable on or before September 2, 1952. The Goolsbys also gave Tobler an option to buy the remaining 185 acres at $1,000 an acre, and this option contained the following provisions, among others:

'* * * and if the sums of money secured by the purchase money mortgage hereinafter referred to are paid when same become due, said option shall continue and remain in effect for a period of five years from the date hereof. * * *

'* * * or if there should be any default in the payment of the purchase money mortgage hereinafter referred to, the remainder of said option shall terminate and become null and void and of no further force and effect.'

'(6) Anything in this Option Agreement to the contrary notwithstanding, any default in payment of that certain purchase money mortgage securing the sum of $25,000.00, executed by Second Party herein, as mortgagor, to First Parties herein, as mortgagees, encumbering property in Broward County, Florida, described as: [described] shall teminate and invalidate said option, and said option shall become null and void and of no further force and effect.' (Italics supplied.)

The mortgage contained a very specific acceleration clause and the usual grace period language had been deliberatley eliminated by the parties.

The first note was not paid on the due date of September 2, 1952, and the following day the Goolsbys instituted suit to foreclose the mortgage in its full amount and for a decree declaring the option invalid according to its terms.

After process was served the Goolsbys heard from Tobler for the first time since June, 1952, when the transaction was closed, but formal tender was not made until September 8, 1952, when Tobler answered the foreclosure suit and deposited into the registry of the court $10,500 representing principal and interest on the first note. Tobler's position then as now was that the default was caused by a simple oversight. The trial court foreclosed the mortgage for the accelerated amount and declared the option at an end. This appeal followed.

The Goolsbys' right to foreclose the mortgage is not in question here, nor is Tobler's right to redeem. Tobler is concerned primarily with the option agreement, contends that its termination is a forfeiture, which equity should not countenance, and asserts that the chancellor's failure to re-instate it was error.

As Tobler contends, mortgage and option were part of the same transaction. By paying, without default, the mortgage installments on the 30 acres, Tobler could have kept the option in force, and, if the election to exercise the option had been made, could have purchased the remainder of the tract. The Goolsbys, on the other hand, had a right to require compliance with the only condition upon which the continued life of the option depended: payment of the sums secured by the mortgage 'when same become due', without 'default.'

Tobler places...