Bardwell v. Albertson

• Decision Date: 17 June 1935
• Citation: 120 Fla. 106,162 So. 321
• Parties: BARDWELL et ux. v. ALBERTSON.
• Court: Florida Supreme Court

162 So. 321

120 Fla. 106

BARDWELL et ux. v. ALBERTSON.

Florida Supreme Court, Division B.

June 17, 1935

Rehearing Denied July 6, 1935.

Suit by Ernest G. Bardwell and his wife against Lillian Barnum Albertson. From a final decree, complainants appeal.

Affirmed. Appeal from Circuit Court, Orange County; M. B Smith, Judge.

COUNSEL

J. F Burrow and E. Dykes, both of Orlando, for appellants.

Maguire & Voorhis, of Orlando, for appellee.

OPINION

BUFORD Justice.

In this case the appeal is from final decree in a suit which was instituted to enforce rescission of an executory contract. The appellee here was defendant in the court below. She resisted rescission on the theory that the complainants Bardwell were only entitled to an abatement in price of the property involved.

The record shows that the Bardwells entered into a contract to purchase a certain lot of land in a residential subdivision near Orlando, Fla.; that the purchase contemplated the lot with a house located thereon and certain furniture and furnishings within the house. The lot was pointed out to the purchasers on the ground. The purchasers went into possession, remodeled and improved the house and beautified the grounds. Later it was discovered that prior to the contract of sale by appellee to appellants appellee had sold another plot of ground which overlapped ten feet on the plot sold to the Bardwells. Upon this discovery being made the Bardwells continued in possession and insisted on abatement in price and the vendor agreed to an abatement but not as much as the Bardwells demanded. Nevertheless, it appears that the Bardwells continued in possession and made payments on the purchase price after discovery of the shortage in the lot. This they had a perfect right to do, provided they intended to stand by the contract and not contend for a rescission.

In the case of Lake Mabel Development Corporation v. Bird, 99 Fla. 253, 126 So. 356, this court said:

'Where a party desires to rescind upon the ground of mistake or fraud, he must, upon the discovery of the facts, at once announce his purpose and adhere to it. If he be silent and continue to treat the property as his own, he will be held to have waived the objection, and will be as conclusively bound by the contract as if the mistake or fraud had not occurred. He is not permitted to play fast and loose.'

In support of which statement we cited the case of Grymes v. Sanders, 93 U.S. 55, 23 L.Ed. 798.

This principle is recognized in many other jurisdictions, but it is not needful to cite other cases when the question has been definitely settled by this court.

In the case of Hendricks v. Stark, 99 Fla. 277, 126 So. 293, 296, we said, quoting with approval from 9 C.J. 1198:

'Where a party, with knowledge of facts entitled him to rescission of a contract or conveyance, afterward, without fraud or duress, ratifies the same, he has no claim to the relief of cancellation. An express ratification is not required in order thus to defeat his remedy; any acts of recognition of the contract as subsisting or any conduct inconsistent with an intention of avoiding it, have the effect of an election to affirm. 'This doctrine seems to rest not upon the principle of a new contract between the parties, nor yet upon the ordinary principle of estoppel in pais, but rather upon a distinct principle of public policy, that all that justice or equity requires for the relief of a party having such cause to impeach a contract is that he should have...