Chappell v. Hasche, 148

• Decision Date: 11 December 1957
• Docket Number: No. 148,148
• Parties: George CHAPPELL and Mrs. G. H. Chappell, his wife, Appellants, v. A. C. HASCHE, doing business as A. C. Hasche Realty in Hillsborough County, Florida, Appellee.
• Court: Florida District Court of Appeals

Page 808

98 So.2d 808

George CHAPPELL and Mrs. G. H. Chappell, his wife, Appellants, v. A. C. HASCHE, doing business as A. C. Hasche Realty in Hillsborough County, Florida, Appellee.

No. 148.

District Court of Appeal of Florida, Second District.

Dec. 11, 1957.

Lifsey, Pursifull & Johnston, Tampa, for appellants.

C. N. Sells, Tampa, for appellee.

KANNER, Chief Judge.

Appellants instituted action to recover a deposit of $1,000 given in connection with a written contract to purchase a grocery business and certain property. Motion was granted to dismiss the complaint. Appellants declined to plead further, and thereupon judgment was entered against them. This appeal is from that judgment.

The essential question is whether the allegations contained in the complaint adequately set up a condition precedent, that is, that the written contract of sale was subject to the oral condition that it should become effective only on the happening of a certain condition or contingency, so as to authorize recovery.

The pertinent allegations of the complaint are:

'1.

'That on October 19, 1956, plaintiffs entered into an agreement with the defendant, whereby the defendant, as Escrow Agent, was to hold certain funds belonging to the plaintiffs until certain conditions set forth in said contract had expired or been completed, and if not so completed, defendant was to return said funds to the plaintiffs. That a copy of said agreement is hereto attached and marked 'Plaintiff's Exhibit A'.

'2.

'That defendant is a real estate broker operating in Tampa, Hillsborough County, Florida, and that said agreement was executed in Tampa, Florida, in connection with the purchase of certain property located in Hillsborough County, Florida.

'3.

'That at the time of the execution of said contract, it was understood and agreed between all of the parties that the plaintiffs might not be able to raise the necessary down payment of $10,000.00 as conditioned by said contract, and that by the terms of said agreement plaintiffs 'reserved 30 days to acquire said down payment', and that at said time it was the understanding of the parties that if the plaintiffs were unable to acquire such down payment, the contract would not become effective as a binding agreement and the $1,000.00 deposit would be returned.

'4.

'That on or before October 23, 1956, it became apparent to the plaintiffs that they would not be able to secure the necessary down payment as conditioned by said contract, and the plaintiffs notified the defendant of this fact according to the understanding between the parties, and requested of him a return of said deposit, but notwithstanding the fact that he was obligated to do so by the terms of said contract, the defendant refused and has to the date of the filing of this complaint continued to refuse to return any of the funds of the plaintiffs, although demand has often been made for the return of same.'

The appellee was the broker as well as the escrow agent in the transaction. The contract is dated October 19, 1956. It provides that the purchase price was $17,500 payable $10,000 in cash, on which the $1,000 deposit was to apply with the condition that the buyer reserved 30 days to acquire the down payment, and that the balance of the purchase price was to be paid on a monthly basis. The contract provided subject to a title curative period that the sale should be closed on or before December 1, 1956.

The legal principle relating to the delivery or the taking effect of a written contract with reference to the 'parol evidence rule' is thus stated in 32 C.J.S. Evidence § 935, p. 857:

'In general, parol evidence is admissible to show conditions precedent, which relate to the existence of a valid contract, but is not admissible to show conditions subsequent, which provide for the nullification or modification of an existing contract.'

Also, in Corbin on Contracts, volume 3, section 589, pp. 318-320, it is said:

'Everyone agrees that the mere existence of a written document does not prove that a contract has been made. This is true, even though the document has all the appearance of a contract complete in every detail, with signatures, witnessing clause, and other legal symbols. Everyone agrees, also, that if no contract has been made, the 'parol evidence rule' has no application. This has supplied one of the frequently used methods by which courts have explained their admission of oral testimony in conflict with a document. A written document, unconditional on its face and fully executed, can be shown by oral testimony to have been delivered subject to a condition precedent. As long as the condition has not occurred, so they say, no contract has been made. Therefore, oral proof of the conditional delivery is admissible in spite of the face of the document to the contrary.'

See also 20 Am.Jur., Evidence, section 1095, p. 956, and Wigmore on Evidence, volume IX, section 2410, pp. 30-35.

The principle stated has long been recognized and generally accepted, both in England and in this country. The reason underlying this exception to the parol evidence rule is that oral evidence is generally permitted to be introduced to show that the parties, prior to or at the time they made a written contract of sale, entered into an agreement that such contract of sale should become operative only on the occurring of a certain condition or contingency, the theory being that such evidence only goes to prove that the instrument never matured as a valid obligation and hence there could be no modification or...