Butler v. Major Holding Corp.

• Citation: 145 Fla. 549,200 So. 96
• Parties: BUTLER v. MAJOR HOLDING CORPORATION.
• Decision Date: 04 October 1940
• Court: Florida Supreme Court

200 So. 96

145 Fla. 549

BUTLER v. MAJOR HOLDING CORPORATION.

Florida Supreme Court, Division A.

October 4, 1940

Rehearing Denied En Banc Feb. 4, 1941.

Certiorari to Circuit Court, Dade County; Worth W. Trammell, Judge.

Suit by William M. Butler against Major Holding Corporation, a Florida corporation, for specific performance of a lease contract. To review orders of the chancellor, William M Butler applies for a writ of certiorari.

Writ granted and orders quashed.

On Petition for Rehearing.

COUNSEL

H. H. Eyles and Irving Ellsworth Lewis, both of Miami, for petitioner.

A Samuel Bender, of Miami Beach, and A. Louis Mechlowitz Mitchell D. Price, and Charles W. Zaring, all of Miami, for respondent.

OPINION

PER CURIAM.

This case is before us on petition for writ of certiorari to certain orders of the chancellor below entered after issuance of our mandate in this same cause, affirming the final decree below in all respects, except as to matters prematurely decided, and leaving the way open for plaintiff, by appropriate proceedings, to ask for conveyance of the property, showing by proper allegations performance of all conditions precedent.

For the former decision here see Major Holding Corporation v Butler, 138 Fla. 633, 190 So. 15, 18. Butler had a lease on a certain described piece of property extending from October 21, 1935, to September 30, 1937. The lease provided that Butler had an option to purchase the property at any time between August 1, 1937, and September 30, 1937, provided he had performed all covenants and conditions of the lease and had given at least ten days' notice of his intention to exercise the option to purchase, accompanied by payment of $100. For certain alleged defaults the defendant corporation exercised its option of declaring the entire amount under the contract due, and Butler notified the defendant corporation that he was ready, able and willing to pay the full amount due under the contract, and tendered the same to the corporation; and that he was ready and desired to exercise the option to purchase. The exercise of the option to declare the entire rent due was by letter dated June 6, 1936. The notice of intention to exercise the option to purchase was made shortly after that, the original bill of complaint was filed July 2, 1936, and was amended August 17, 1936. Decree pro confesso against defendant corporation was confirmed by the final decree. On Appeal of that case here we said:

'At the time the tender was made, plaintiff notified the Corporation that he wished to exercise his option to purchase the property. However, at that time, plaintiff did not have the right to exercise the option to purchase because such option was not to be exercised until the months of Auguest and September of 1937; but such claim by plaintiff should have been considered notice of intention to exercise the option to purchase. The acceptance of the tender of these payments could not be refused by the Corporation after it had elected which option it chose to proceed under and had accelerated all payments for the balance of the term. Such acceptance of the sum demanded would then entitle plaintiff to remain in possession of the property for the remainder of the term, so long as not in default in any other particular mentioned in the lease. Then when August 1, 1937, arrived, plaintiff would have the right, if not otherwise in default at that time, to have the conveyance of the property made to him. At the time the amended bill was filed plaintiff was not then entitled to the conveyance, and the final decree could not have properly so found, unless the amended bill, some time after August 1, 1937, had been properly amended to show this fact and that plaintiff was not in default in any material particular mentioned in the lease and all payments required had been made. The record shows that the Special Master had not begun to take testimony at this time.

'In this light then, that part of the final decree awarding conveyance of the property to plaintiff and ordering plaintiff to give a mortgage and note to defendant for the balance of the purchase price, was premature. The way is thus left open for plaintiff, by appropriate proceedings, to ask for conveyance of the property, showing by proper allegations performance of all conditions precedent. The final decree is in all other respects affirmed.'

After the mandate went down to the lower court, the chancellor granted plaintiff leave to file amendments to the amended bill of complaint. The amended bill was amended to conform to the terms of the mandate; that is, it covered the period of time beginning with the date when the notice of intention to exercise the option to purchase was given, on or about June 6, 1936, down to and including August 1, 1937.

An answer was permitted to be filed covering not only the period covered by the amendment to the amended bill, but also answering allegations contained in the original amended bill, upon which final decree had been entered, and which portion of the final decree had been affirmed on appeal here. Motion to strike the answer was overruled.

Motion was made (1) to limit the taking of testimony to Butler's right to specific performance of the lease contract, and (2) that the special master should accept the final decree heretofore entered in this cause as binding upon the parties (a) as to any default by plaintiff under the terms of said lease, and (b) as to the balance remaining due and unpaid upon the purchase price of said lands as of the date of the final decree. The motion was denied and the court appointed a special master to take testimony without limitation as to the scope of the inquiry, the only limitation being the time for taking testimony.

It is apparent that the order of the chancellor denying the motion to strike the answer was not in conformity with the essential requirements of law, in so far as the answer undertook to answer the original amended bill of complaint, and to make an issue of matters that had been litigated and decided...