Ball v. Roney

• Decision Date: 03 October 1933
• Citation: 112 Fla. 186,150 So. 240
• Parties: BALL v. RONEY.
• Court: Florida Supreme Court

150 So. 240

112 Fla. 186

BALL v. RONEY.

Florida Supreme Court, Division A.

October 3, 1933

Error to Circuit Court, Dade County; P. D. Barns, Judge.

Action by Charles Ball against N. B. T. Roney. Judgment for defendant, and plaintiff brings error.

Affirmed.

COUNSEL Robert J. Boone, of Miami, for plaintiff in error.

Loftin Stokes & Calkins, of Miami, for defendant in error.

OPINION

TERRELL, Justice.

In August, 1925, plaintiff in error gave defendant in error his check for $9,800 to be credited as the down payment on certain lands, contracted to be purchased by the former from the latter, located at Seminole Beach, Broward county, Fla. In August, 1931, Ball brought this action against Roney to recover the face of his check because Roney did not own the lands at the time he contracted to sell them to Ball and at no time thereafter has he acquired title to them that he could convey. The declaration declared on general and special assumpsit. The count on special assumpsit failed on demurrer. To the counts on general assumpsit defendant pleaded the general issue and the bar of the statute of limitations. Plaintiff entered his replication to said pleas, alleging that he was relying on defendant's implied promise to return the face of the check in the event of failure to deliver title and that the action was not barred for the reason that the check and the indorsement thereon constituted a written obligation to meet the terms of the implied promise. The replication failed on demurrer plaintiff declined to plead further, final judgment was entered for defendant, and that judgment is brought here for review on writ of error.

It is first contended that the court erred in its order sustaining the demurrer of defendant to the replications of the plaintiff raising the bar of the statute of limitations.

The pertinent part of section 2939, Revised General Statutes of 1920, section 4663, Compiled General Laws of 1927, being the statute of limitations invoked, is as follows:

'Actions other than those for the recovery of real property can only be commenced as follows:

'1. Within Twenty Years.--* * * An action upon any contract, obligation, or liability founded upon an instrument of writing under seal. * * *

'3. Within Five Years.--An action upon any contract, obligation or liabilityfounded upon an instrument of writing not under seal. * * *

'5. Within Three Years.--* * * 5. An action upon a contract, obligation or liability not founded upon an instrument of writing. * * *'

From the foregoing it will be gleaned that the statute bars actions on contracts founded on sealed instruments after twenty years, actions on contracts founded on written instruments not under seal after five years, and actions on contracts not founded upon written instruments after three years.

The contract brought in question was to convey title on payment of the agreed consideration. There was no obligation or agreement in writing or in parol to restore the consideration agreed on and paid in any event. There was, of course, an implied agreement on the part of the vendor to do this in the event of inability or failure to deliver title to the lands in compliance with his...