Duval Investment Co. v. Stockton

• Decision Date: 17 December 1907
• Citation: 45 So. 497,54 Fla. 296
• Parties: DUVAL INVESTMENT CO. v. STOCKTON.
• Court: Florida Supreme Court

45 So. 497

54 Fla. 296

DUVAL INVESTMENT CO. v. STOCKTON.

Florida Supreme Court, Division A.

December 17, 1907

Error to Circuit Court, Duval County; Rhydon M. Call, Judge.

Action by J. N. C. Stockton against the Duval Investment Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Corporations act by agents, and an allegation that a defendant corporation, by a named agent, 'who was thereto duly authorized,' entered into an agreement, sufficiently alleges the agency.

In an action for breach of contract, where it is alleged that the defendant agreed to sell and deliver to plaintiff certain described lands for $100 cash down, $300 on delivery of deeds, and $2,500 in three years; that the $100 was paid that plaintiff resold the land at a profit; that defendant well knew that plaintiff purchased to resell; that defendant failed and refused to deliver the land, and informed plaintiff's vendee that it could not deliver a portion of the land; that defendant kept the cash payment made by plaintiff; and that plaintiff lost the definite profitable sale he was to make--a cause of action is stated, and it is not necessary to allege a tender of the second payment, or a demand for the deeds, since the acknowledged inability to deliver the land as agreed, upon the first payment being made, was the breach of the contract for which action could be brought.

COUNSEL

Richard P. Marks, for plaintiff in error.

W. B Young, for defendant in error. The declaration in this case is as follows:

'John N. C. Stockton, by Wm. B. Young, his attorney, sues the Duval Investment Company, a corporation created and existing under the laws of Florida, and having its principal place of business in the city of Jacksonville, Florida, for that on the 6th day of July, A. D. 1905, by an instrument in writing signed by W. S Jordan, agent of said defendant, who was thereto duly authorized, the said defendant entered into an agreement with the plaintiff to sell and deliver to him 66 lots in Jordan's subdivision, situated in said Duval county, on the following terms, to wit: $100 cash down, $300 on delivery of deeds, and $2,500 on or before three years, with interest on deferred payments at 7 per cent. And thereupon plaintiff paid to defendant the cash payment of $100, and upon the same day plaintiff resold the said lots to one J. Douglas Wetmore, for $4,000, to be paid as follows: $500 cash, $1,000 on delivery of deed, and $2,500 on or before three years, with interest at 7 per cent. And thereupon the said Wetmore paid to plaintiff the said cash payment of $500, and the said defendant well knew that plaintiff purchased said lots for the purpose of reselling them, and afterwards the said Wetmore ascertained that a large number of said lots, to wit, 24, were in the adverse possession of others, and that defendant could not deliver possession of them, and the 7th day of August demanded the return of the said $500 so paid by him as aforesaid, and plaintiff was forced to return same, and the defendant has failed and refused to deliver the said lots, but, on the contrary, informed the said Wetmore that it could not deliver the said lots, and the defendant kept the cash payment made by plaintiff, by reason of which breach of its contract of sale, plaintiff has been greatly damaged and injured, and he claims $1,200 as damages.

'(2) And the said plaintiff, by his said attorney, further sues the said defendant, for that the said defendant contracted with the plaintiff in writing on the 6th day of July, 1905, to sell and convey to the plaintiff 66 lots in Duval county, Florida, in what is known as Jordan's subdivision, for $2,900, $100 of which was paid in cash on said day, and afterwards on the same day plaintiff resold the said lots at an advance of $1,100, but subsequently defendant informed J. Douglas Wetmore, the person to whom plaintiff had resold said lots, that defendant could not deliver possession of a large number of said lots, to wit, 24, and thereupon plaintiff was forced to rescind his contract of sale of said Wetmore, to the great loss and damage of the plaintiff, and plaintiff claims $1,200 as damages.'

The defendant presented a demurrer to the declaration as follows:

'To the first count of said declaration:

'(1) That said count states no cause of action as against this defendant.

'(2) That said count does not show a tender of the $300 and a demand for deed.

'(3) That said declaration does not allege the misrepresentation of any material fact, knowing the same to be a misrepresentation.

'(4) That said count does not allege that the plaintiff made the payments required by the alleged contract, or tendered the same, or that he was ready and willing to make the same.

'(5) That said count does not know that the said Jordan knew that the said Wetmore had purchased said lots from the plaintiff.

'(6) That the said declaration does not show that the time had arrived under the terms of the alleged agreement when defendant was required deliver possession of said property.

'To the second count of said declaration:

'(1) That said count states no cause of action as against this defendant.

'(2) That said count does not show a tender of the $2,900 and a demand for conveyance.

'(3) That said count does not allege the misrepresentation of any material fact, knowing the same to be a misrepresentation.

'(4) That said count does not allege that the plaintiff made the payments required by the alleged contract, or tendered the some, or that he was ready and willing to make the same.

'(5) That said count does not show that the defendant knew that the said Wetmore had purchased said lots from the plaintiff.

'(6) That said declaration does not show that the defendant was called upon to deliver said lots to the plaintiff.

'(7) That said declaration does not show that the time had arrived under said alleged contract when the defendant was required to deliver possession of said property, if so required.

'(8) That said count does not allege that the defendant could not deliver possession of said property, nor the specific reasons why...