Collier v. Fox

• Decision Date: 05 January 1951
• Citation: 49 So.2d 801
• Parties: COLLIER et al. v. FOX et al.
• Court: Florida Supreme Court

Page 801

49 So.2d 801

COLLIER et al. v. FOX et al.

Supreme Court of Florida, en Banc.

Jan. 5, 1951.

E. M. Magaha and Thomas A. Kurtz, Fort Myers, for appellants.

Parker Holt, Fort Myers, and Redfearn & Ferrell, Miami, for appellees.

ROBERTS, Justice.

The case here on appeal had its inception in an action for damages for breach of contract brought by plaintiff-appellants against defendant-appellees. The defendants' demurrer to the declaration was sustained by the trial judge and, upon plaintiffs' failure to amend further, final judgment was entered for defendants, from which judgment plaintiffs have appealed.

The plaintiffs alleged in their declaration, in substance, that they entered into a written contract with defendants for the purchase and sale of a liquor business owned by plaintiffs, at which time defendants handed to plaintiffs a check in the amount of $13,500 as a binder on the purchase and in part payment of the purchase price. Two or three days later, defendant stopped payment on the check (the reason for which is not disclosed by the record) and, it is alleged, 'thereby breached and failed to perform their said agreement with plaintiffs without cause or provocation.' The plaintiffs then, on the following day, 'with the consent of the defendants, took and accepted a redelivery to them by said defendants of said business, less the goods, wares and merchandise sold and disposed of by defendants.'

The defendants' demurrer contained several grounds, including (1) that the declaration affirmatively showed an abandonment of the contract by mutual consent of the parties, (2) that the contract was conditional and it is not alleged in the amended declaration that such conditions had been fulfilled, and (3) that the allegations as to damages were insufficient. The order sustaining the demurrer did not specify on which ground it was based, but we will limit our discussion to the three grounds aforementioned, as did the parties on this appeal.

As to the first ground, it is contended on behalf of defendants that the allegation that plaintiffs accepted a redelivery of the business 'with the consent of the defendants' is sufficient to show that the parties mutually agreed to rescind the contract. This contention cannot be sustained.

It is well established that mere repossession by the seller of goods sold that have been returned to him or abandoned by the buyer does not of itself necessarily effect or evidence a mutual rescission of the sale. Schultz v. Tostove, 191 Minn. 116, 253 N.W. 372, 106 A.L.R. 701; Phillips v. Stark, 186 Cal. 369, 199 P. 509; Pacific Odorite Corp. of San Francisco v. Gersh, 94 Cal.App.2d 174, 210 P.2d 318; Hayden v. Collins, 90 Utah 228, 37 P.2d 349; Rider v. Cottle, Wash., 202 P.2d 741; 46 Am.Jur., Sales, Section 788, page 917. Nor does the fact that the repossession was alleged to be 'with the consent of the defendants' strengthen the defendants' position. This allegation is not necessarily inconsistent with an intention on the part of plaintiffs to hold defendants to their contract; and, even when construed most strongly against the pleader, does not justify the conclusion that, as a matter of law, the parties mutually agreed to rescind the contract. 'It is frequently said that evidence of such agreement to rescind must be clear, positive, unequivocal, and inconsistent with the existence of the contract and that it is not enough to merely recognize that the purchaser...