Behrman v. Max
| Decision Date | 24 September 1931 |
| Citation | 102 Fla. 1094,137 So. 120 |
| Parties | BEHRMAN v. MAX. |
| Court | Florida Supreme Court |
Commissioners' Decision.
Error to Circuit Court, Dade County; Paul D. Barns, Judge.
Action by Harry Max against Jonas Behrman. To review the judgment rendered, plaintiff brings error.
Affirmed.
Order striking special pleas does not constitute error, where defendant is entitled to make same defense under plea to general issue (Comp. Gen. Laws 1927, § 4296).
Order striking special pleas does not constitute error, where defendant is entitled to make same defense under plea to general issue. F.S.A. § 50.21.
Syllabus by the Court.
Striking a plea is a severe remedy, and should be resorted to only in cases palpably requiring it for the proper administration of justice.
Where a defendant is entitled to make the same defense under the plea to the general issue as he would under special pleas, he is not in position to successfully contend that the order striking the special pleas constituted error.
An offer to sell merely contemplates the proffer of something to another for acceptance or rejection, and, not being based upon a valuable consideration, may be withdrawn any time prior to acceptance, while an option to purchase is a privilege existing in the optionee, for which he has paid money, which gives him the right to purchase under the terms and within the time designated therein.
Though an option is a mutual contract, it confers no rights, unless it carries the elements necessary to an enforceable contract.
A definitely accepted option to purchase lands becomes mutually binding under its terms, and the holder may exercise his option to buy any time within the period specified.
Where the optionor, before the time expires for optionee to exercise his option to purchase, gives notice to optionee that he could not deliver the lands described, it is not essential that the optionee give notice of his election to purchase and make a tender of performance as a prerequisite to filing suit for breach of the option contract.
Where one of the parties to an executory contract informs the other before the time of consummation arrives that he will not perform his part, it is not essential that the party not at fault shall thereafter make formal tender of performance as a necessary basis for institution of suit for breach.
COUNSEL Harry Gordon, of Miami, for plaintiff in error.
Price Price & Hancock, of Miami, for defendant in error.
Harry Max, defendant in error, filed his declaration in the circuit court of Dade county, the second count of which alleges that on September 5, 1925, Jonas Behrman, plaintiff in error here entered into an option agreement to sell and deliver to plaintiff, Harry Max, certain lots in the city of Miami at a stipulated total price of $40,000, there being paid $2,000 in cash at the time of the execution of the agreement, and the remainder of the cash payment was to be paid at the time of the consummation of the sale on or before October 5, 1925. It is further alleged that:
'Between the date of the said contract and the date fixed therein for the consummation of the purchase therein agreed upon to-wit, the 5th day of October, A. D. 1925, the said defendant advised and informed the plaintiff that he could not deliver the said lots and failed and refused to deliver the same, although the plaintiff was at all times ready, willing and able to do and perform all things necessary to be performed on his part under the terms and conditions of the aforesaid contract.'
The option agreement attached to the declaration provides in part as follows:
'Received of Harry Max or assigns the sum of $2,000.00 in payment for option to purchase the following described property (describing it).'
Also provides: 'That the said Harry Max or assigns, shall exercise the same on or before the 5th day of October, 1925.'
A demurrer interposed by defendant to both counts of the declaration was sustained as to the first count and denied as to the second. Thereupon defendant filed several pleas to which plaintiff filed a demurrer and a motion to strike all except plea No. 1, which was a plea to the general issue that 'defendant did not promise as alleged.'
The motion to strike the other pleas was granted except as to pleas 12 and 14, respectively. They in substance denied that complainant was ready, able, and willing to perform the option contract, and denied that the defendant knew the lots were purchased for resale.
It appears to be admitted by both parties to this appeal that the two main questions presented for adjudication are: (1) Whether or not the granting of the motion to strike defendant's special plea No. 11 was error; (2) would the fact that a vendor, before the time expires for optionee to exercise his option to purchase lands, gave notice to optionee that he could not deliver the property, make it unnecessary for the optionee to give 'notice of his election to purchase' before filing suit for breach of the option contract?
With reference to the first question, it will be observed that the second count of the declaration contains the following:
'The said defendant advised and informed the plaintiff that he could not deliver the said lots and failed and refused to deliver the same.'
Also that plea No. 11 of the defendant which the court struck on motion of the plaintiff alleges:
'This defendant denies that he advised and informed the plaintiff that he could not deliver the said lots at any time prior to the expiration of the option period.'
It is contended by plaintiff in error that, inasmuch as the defendant's first plea to the general issue states that he did not promise as alleged, the above-quoted eleventh plea to the declaration became unnecessary, as the burden of proof under the law is necessarily assumed by the plaintiff anyway to substantiate that issue by proper evidence.
This court has frequently held that striking a pleading is a severe remedy, and should be resorted to only in cases palpably requiring it for the proper administration of justice. Burr v. Hull, 66 Fla. 20, 63 So. 300; Guggenheimer & Co. v. Davidson, 62 Fla. 490, 56 So 801; Tripp v. Wade, 82 Fla. 325, 89 So. 870, 871. This court has also repeatedly held that, if the defendant was entitled to make the same defense to the action under a plea to the general issue as he would have been entitled to make under the pleas that were stricken, he is not in a position to successfully contend that the order striking the special pleas constituted harmful error; also held Tripp v....
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