Evans v. Borkowski
| Decision Date | 22 March 1962 |
| Docket Number | No. D-1,D-1 |
| Citation | 139 So.2d 472 |
| Parties | Carl S. EVANS and Audrey E. Evans, his wife, Appellants, v. Felix BORKOWSKI, Appellee. |
| Court | Florida District Court of Appeals |
Dan R. Warren, Daytona Beach, for appellants.
Ossinsky & Krol, Daytona Beach, for appellee.
Carl S. Evans and wife, the buyers, sued Felix Borkowski, the seller, to recover an alleged overpayment made under protest incident to their purchase of real and personal property, consisting of a motel and its furnishings. Summary final judgment was entered in favor of seller, hence this appeal.
The undisputed proofs reflect that on July 24, 1956, the parties entered into a written purchase and sale agreement covering the subject property, possession of which was delivered to buyers on that date. The agreed purchase price was $40,000.00, payable $15,500.00 in cash, $4,500.00 within sixty days from said date, and $20,000.00 within 120 days from said date. Seller agreed to furnish buyers with marketable title by the time the final payment of $20,000.00 became due, else to refund all sums theretofore paid, less the 'rentals taken in' for which buyers were to account to seller. The penalty for failure to make the specified payments was that the moneys 'paid on account shall be forfeited and this agreement shall become null and void, and all copies shall be returned to the Seller for cancellation.' There was no provision for payment of interest on delinquent or deferred installments of the purchase price.
Due to buyers' financial difficulties, the transaction comprehended by the agreement of July 24, 1956, was not consummated. Instead, seller indulged several requests of buyers of defer payment of said $4,500.00 and $20,000.00 installments and on November 9, 1957, the following independent transaction took place: Buyers paid seller an additional sum of $9,500.00 and gave him their promissory note of that date for $15,000.00, bearing 6% interest, maturing November 9, 1958, secured by their mortgage of that date on the subject realty, and in exchange therefor received seller's deed of conveyance of the realty, subject to said mortgage, and his bill of sale to the personalty.
The mortgage note became in default, but no action was taken to reduce the note to judgment or enforce the mortgage. By check dated July 31, 1959, buyers paid and seller accepted the sum of $6,900.00 for application on the note; and on May 19, 1960, buyers tendered $10,005.00 to seller in payment of the unpaid balance of said note and requested a release of the mortgage in exchange therefor, whereupon seller, as a condition to giving the release, demanded that buyers pay an additional $1,386,90 for 6% interest on the above mentioned items of $4,500.00 and $20,000.00, respectively, during the period from their respective due dates under the agreement of July 24, 1956, to November 9, 1957, the date when the $9,500.00 payment was made and the note and mortgage given in exchange for the deed and bill of sale. Faced with said demand, the buyers paid said sum of $1,386.90 under protest, and paid the $10,005.00 balance of the mortgage note, and seller then delivered a satisfaction of the mortgage.
The facts thus far stated are not in dispute. Although there may be some question of fact on the subject, we assume, for the purposes of this opinion and as contended by seller, that buyers induced seller to make the conveyances and accept the note and mortgage of November 9, 1957, in consideration of their contemporaneous parol agreement to pay to seller, not later than November 10, 1957, an amount equal to 6% interest on the deferred purchase money installments of $4,500.00 and $20,000.00 under the contract of July 24, 1956, for the period from their respective due dates to November 9, 1957. On this predicate there arises three questions for determination: (1) whether the transactions of November 9, 1957, constituted a novation, taking the place of and operating to destroy the contract of July 24, 1956; (2) if so, whether the contemporaneous parol agreement is inadmissible in evidence because it would tend to contradict or add to the written instruments evidencing the novation; and (3) assuming the parol evidence rule operates to bar the parol agreement from admission in evidence, whether the...
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Visingardi v. Tirone, s. 64-595
...to contain sufficient allegations that would have been entitled to be admitted into evidence at the time of trial. See: Evans v. Borkowski, Fla.App.1962, 139 So.2d 472; Harrison v. Consumers Mortgage Company, Fla.App.1963, 154 So.2d 194; Rule 1.36(e), Florida Rules of Civil Procedure 30 F.S......
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Leaseco, Inc. v. Bartlett
...in evidence. Page v. Staley, Fla.App.1969, 226 So.2d 129; Lake v. Konstantinu, Fla.App.1966, 189 So.2d 171; and Evans v. Borkowski, Fla.App.1962, 139 So.2d 472. Appellants' next point is that the court erred in granting plaintiff's motion in limine by which the defendants were prohibited fr......
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Page v. Staley
...104 So.2d 404; Tarkoff v. Schmunk, Fla.App.1959, 117 So.2d 442; Pollock v. Kelly, Fla.App.1960, 125 So.2d 109; Evans v. Borkowski, Fla.App.1962, 139 So.2d 472; Hardcastle v. Mobley, Fla.App.1962, 143 So.2d 715; Lake v. Konstantinu, Fla.App.1966, 189 So.2d 171; Producers Fertilzer Co. v. Hol......
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Aronowitz v. Health-Chem Corp., No. 06-11344.
...agreement of equal or greater dignity to the agreement first made with respect to the same subject") (quoting Evans v. Borkowski, 139 So.2d 472, 474 (Fla.Dist.Ct.App.1962)). Here, the language of the 2003 contract states that the assignment for which it provides "terminate[s] all obligation......