F. A. Chastain Const., Inc. v. Pratt

• Decision Date: 27 November 1962
• Docket Number: No. 61-858,61-858
• Citation: 146 So.2d 910
• Parties: F. A. CHASTAIN CONSTRUCTION, INC., a Florida corporation, and F. A. Chastain and Bessie L. Chastain, his wife, Appellants, v. George H. PRATT and Cecelia A. Pratt, his wife, Smith Haselwood and Adelyn B. Haselwood, his wife, and Guion T. Deloach, Appellees.
• Court: Florida District Court of Appeals

Page 910

146 So.2d 910

F. A. CHASTAIN CONSTRUCTION, INC., a Florida corporation, and F. A. Chastain and Bessie L. Chastain, his wife, Appellants, v. George H. PRATT and Cecelia A. Pratt, his wife, Smith Haselwood and Adelyn B. Haselwood, his wife, and Guion T. Deloach, Appellees.

No. 61-858.

District Court of Appeal of Florida, Third District.

Nov. 27, 1962.

Rehearing Denied Dec. 13, 1962.

Kates & Ress, North Miami, for appellants.

Bolles & Prunty and Michael C. Slotnick, Miami, for appellees.

Before HORTON, CARROLL and HENDRY, JJ.

HORTON, Judge.

Appellants, plaintiffs below, seek review of an adverse final decree and two amendatory post decretal orders. We reverse.

The appellees were developing a tract of land and on January 31, 1959, entered into a contract with the appellants whereby the appellants were to provide 18,000 cubic yards of fill for $16,500.60. By the terms of this contract, appellees were to pay $9,000.60 in cash as the work progressed, making up the balance of the contract price by conveying title to one of the lots in the tract to appellants as soon as the tract had been platted and title thereto perfected. On September 12, 1959, the parties entered into a similar contract whereby appellants were to provide an additional 12,136 cubic yards of fill for $10,500.07. As substituted consideration for the contract price, appellees were to convey title to a second lot to appellants as soon as the conditions applicable to conveyance of the first lot had been met.

On November 24, 1959, appellants borrowed $10,000 from the appellees. At this time appellants had substantially performed both contracts to the satisfaction of the appellees and in addition had furnished extra fill to the value of $1,976.12. The appellees had paid the appellants the $9,000.60 in cash called for by the first contract, but were unable to convey title to either of the lots since they had not as yet been platted and were still involved in litigation. As security for both parties, an escrow agreement was entered into calling for the appellees to deposit with an escrow agent warranty deeds and appellants a mortgage to the lots in question and their note for $10,000 payable in nine months. The escrow agreement took cognizance of the dealings between the parties and provided that the warranty deeds were to be delivered to appellants when (1) the tract was platted, (2) litigation to perfect title to them had been concluded, and (3) the $10,000 loan was duly and promtly repaid. It further provided that the escrow agent should deliver the mortgage deed to the appellants if the loan were repaid or to the appellees if it were not repaid. Viewed in relation to the total transaction between the parties of which it was but a part, the tenor of this agreement indicates that its purpose, as is usually the case when parties enter into an escrow agreement, ¹ was to create a situation such that neither party would have to perform unless he received counter performance.

When the appellants did not repay the loan within nine months, the appellees treated the escrow agreement as a pledge and succeeded in obtaining both the warranty and mortgage deeds from the escrow agent. At this time no plat had been filed and the tract was still involved in litigation. Consequently the appellants brought this action seeking specific performance, an accounting, damages, and other relief. The appellees answered and counterclaimed seeking (1) an accounting to determine the amount due them on the loan and for attorney's fees in connection with this action, and (2) that the court fix a date by which this amount must be paid or the lots sold to satisfy this debt.

After hearing, the chancellor entered the final decree appealed wherein he found, inter alia, that the appellants were entitled to be paid for the $1,976.12 in extras, and that:

'* * * the express terms and conditions of the escrow agreement require that the warranty deed to the above described real property is to be delivered to the plaintiff and because said loan remains unpaid, the escrow agent was directed to deliver the mortgage deed to the defendants, Pratt and Haselwood for the purposes of recording and other appropriate action. It appears, therefore, that the plaintiff herein should have the benefit of the title being recorded in its name of the above described real property, and that the defendants, because said loan remains unpaid to date, to also have their mortgage to the above described real property also recorded to evidence the $10,000.00 loan. It appears at this time that, after deducting the extras that there is due by the plaintiff to the defendants, Pratt and Haselwood, the sum of $9,023.88, with interest at 6% from November 24, 1959 to date. It would be inequitable to foreclose the plaintiff's...