Coble v. Agnew, 1969

• Decision Date: 29 March 1961
• Docket Number: No. 1969,1969
• Citation: 128 So.2d 158
• Parties: Frank H. COBLE, William Gegax, and Carl Coble, Appellants, v. Arthur S. AGNEW, Appellee.
• Court: Florida District Court of Appeals

Page 158

128 So.2d 158

Frank H. COBLE, William Gegax, and Carl Coble, Appellants, v. Arthur S. AGNEW, Appellee.

No. 1969.

District Court of Appeal of Florida, Second District.

March 29, 1961.

Henderson, Franklin, Starnes & Holt, Fort Myers, for appellants.

Sheppard & Woolslair, Fort Myers, for appellee.

SMITH, CULVER, Associate Judge.

This action was brought by appellants-plaintiffs against the appellee-defendant, seeking an abatement of the purchase price of a certain tract of land purchased from him. Plaintiffs alleged that they did not know the amount of acreage contained in the tract and that they relied on the defendant's representations in that respect. It is further alleged that about two years after the transaction was closed, plaintiffs caused the tract to be surveyed, which survey revealed an acreage deficiency of 7 1/2 acres. The purchase price was $33,000, and plaintiffs contended that they were entitled to an abatement in the price of $1,000 per acre, it being their position that the tract was represented to them as containing 33 acres, more or less.

There is a considerable conflict in the testimony produced before the Chancellor. He found that the equities were with the defendant, and dismissed plaintiffs' complaint. The Chancellor made no findings of fact in his decree.

On appeal, under these circumstances, this Court must accept the facts to be those shown by that evidence most favorable to the party prevailing below. Since no finding of fact was made, we, of course, assume that the Chancellor relied upon that evidence supporting the position of the defendant. This controlling principle is set out in the case of Pergament v. Pergament, Fla.App., 117 So.2d 26, 29 wherein this Court said:

'We stated above that the testimony was heard personally by the trial judge. An appellate court does not retry a case but accepts a determination of facts made by the trial judge where the record discloses testimony from which the trial judge could have determined the facts, which was done in this case. The truth or falsity of the testimony of various witnesses, the effect thereof, and the weight to be given the testimony of each witness are matters for the trier of facts to determine and not an appellate court.'

We, therefore, set out herein as a statement of facts, that evidence favoring the defendant, conceding that much is contradicted by other evidence appearing in the record.

The tract of land in question, being located in Lee County, Florida, had been owned by defendant for approximately 37 years. On October 22, 1956, defendant wrote Ragsdale and Guthrie, real estate brokers, offering them a listing on the property involved for $36,000. The letter contained a sketch, prepared by the defendant, estimating there to be about 35 acres. Defendant denied ever making any representation to the brokers or to plaintiffs, before the transaction was closed, other than the letter mentioned above, as to the number of acres contained in the tract of land he was selling. There is testimony to the effect that one of the plaintiffs verbally agreed to purchase the property for $36,000, but that he was unable to carry through on that basis. He later brought another of the plaintiffs into the deal and they made a counter-offer of $33,000 which the defendant accepted. Two of the plaintiffs came to Fort Myers before the transaction was closed and discussed the property with the defendant, who denies making any statements whatsoever concerning the number of acres it contained. He testified that he did not know.

The first contract drawn described the property by metes and bounds, without any reference to the number of acres. Plaintiffs requested that there be added to the contract a provision that the purchase price was based upon an estimate of 33 acres and would be subject to revision upward or downward, at the rate of $1,000 an acre when a survey was completed. They further requested that the parties provide who should bear the cost of a survey. The defendant refused to agree to these provisions. His reasons were that he was selling a piece of ground according to a metes and bounds description, and that he did not know himself how many acres there were. Thereafter, a provision was added stating that the tract contained '33 acres more or less.' The contract containing the quoted words after the metes and bounds description was executed by the parties on May 21, 1957. The deed of conveyance contains the same metes and bounds description and the words '33 acres more or less.'

Plaintiffs' surveyor testified that he could accurately locate the property from the metes and bounds description, but upon making his survey two years later found only 25.5 acres. A survey by another qualified party showed 27.5 acres in the tract.

We believe that the real point to be resolved in this controversy is whether the transaction in question was a sale by the acre, or a sale in gross.

The plaintiffs' principal reliance for reversal is upon two cases. The first is that of Phifer v. Steenburg, 66 Fla. 555, 64 So. 265, 268. In that case the lands were described by metes and bounds and further stated to contain 3,500 acres more or less. Seller's agent assured the purchaser that he well knew the lands and that they contained 3,500 or more acres and that he would make a good title to...