Farnham v. Blount

• Decision Date: 04 August 1942
• Citation: 152 Fla. 208,11 So.2d 785
• Parties: FARNHAM et al. v. BLOUNT. SAME v. PRINDIBLE et al. SAME v. BLOUNT et al.
• Court: Florida Supreme Court

11 So.2d 785

152 Fla. 208

FARNHAM et al. v. BLOUNT.

SAME v. PRINDIBLE et al.

SAME v. BLOUNT et al.

Florida Supreme Court

August 4, 1942

Appeals from Circuit Court, Escambia County; L. L fabisinski, judge.

W. W Flournoy, of De Funiak Springs, and F. Churchill Mellen of Pensacola, for appellants.

Yonge Beggs & Carter of Pensacola, for appellees.

CHAPMAN, Justice.

We have for review three appeals from final decrees entered by the Circuit Court of Escambia County, Florida, foreclosing three separate and different purchase-price mortgages. Appeals Nos. 1 and 2 embrace two purchase-price mortgages upon the undivided interests in the home of the late W. A. Blount known as 'Seamarge'. One of the mortgages was to the adult heirs, while the other was to the minor heirs of the late W A. Blount. The appeal identified as No. 3 involves a purchasemoney mortgage not on any portion of the Blount home but on a small tract of land then owned by Cora M. Blount now deceased, who was the widow of the late W. A. Blount, lying adjacent or closely to Seamarge. Suit in her behalf was brought by her representatives, namely, her son F. M. Blount, and her son-in-law, Dowdell Brown. Voluminous testimony taken in support of the issues made in the three suits has been certified here in a single record.

Appeal No. 1 involves a final decree in behalf of the adult heirs of the late W. A. Blount, brought in the name of their agent, F. M. Blount, against the Farnhams et al., as to their respective undivided interests in Seamarge, while appeal No. 2 involves a final decree in behalf of the two minor children of the late W. A. Blount, Jr., in a suit brought in the name of their guardian, Louise A. Prindible, against the Farnhams et al., as to the undivided interest of the minors in and to Seamarge. These separate suits consisted of the usual or ordinary bills of complaint seeking a decree for the balance due on the purchase-price mortgages.

The joint and several answers of the Farnhams to the two foreclosures were to the effect (a) the Farnhams were strangers in Pensacola and environs and not acquainted with Florida property and values; (b) that they negotiated with Harold McCaskill, agent of the owners, for the purchase of Seamarge as a home; (c) the owners, through their agent, represented the property to be in first-class condition; (d) the roof on Seamarge was in good condition; (e) the heating plant was adequate to heat the building; (f) the plumbing and fixtures ant the electric wiring were of approved standards, and the Farnhams, not having an opportunity to examine the building prior to the consummation of the deal, relied upon the representations and statements of the owners and their agents as to these material and important factors. That as an inducement to purchase the agent represented that Seamarge was of the best construction in the south and the original cost thereof was $300,000; that the designing architect traveled through Europe for a long period and expended large sums in examination and considering mansions and castles prior to concluding the architectural plans and specifications of Seamarge.

The defendants, accepting as true the false representations as to the condition of Seamarge as made by the owners and agents, made payments and executed and delivered the purchase-price mortgages sued upon, but after becoming domiciled therein learned that the converse was true in that: (a) the original cost of construction of Seamarge was not $300,000 but less than $100,000; (b) that the roof was built up and overlaid with tile and 19 years old, concealed from view and highly decomposed and totally inadequate to protect the building from rain and the elements; (c) the boiler and the heating plant were old, unusable, contained cracks and leaked continuously and could not be used; (d) the plumbing was obsolete, continuously out of repair and totally inadequate to meet the ordinary use and enjoyment of the home; (e) the breakwater structures or bulkhead were defectively constructed, unsafe and totally inadequate to protect the home from storms and hurricanes. That a partial failure of consideration existed and the false and fraudulent representations of the owners and agent made to the defendants induced them to purchase the property. That the defendants have paid more than the market value of the property to the plaintiffs below because of these fraudulent representations and in a court of equity the plaintiffs below because of these facts should be required to cancel of record the mortgages and dismiss the foreclosure suits. Evidence was taken on these issues and decrees crees for the mortgagees was entered in the lower court.

Seamarge is a country estate containing approximately 13 acres situated on the shores of Pensacola Bay about 3 1/2 miles distant from the center of the City of Pensacola. It has a 500 foot frontage on the Bay and extends back about 1220 feet. The late W. A. Blount, in 1906 or 1907, constructed on the tract two residences, two servants' houses, double garage, stables, pumping plant, green house, walks, drives, and a bulkhead on the Bay of approximately 500 feet in length. On the grounds are beautiful palms, magnolias, live oaks, bamboo and other trees and plants indigenous of Florida, as well as exotic plantings. The Blount home contains 28 rooms and is constructed of Brazilian granite and timber 85 per cent heart pine. It consists of three stories, with a tile roof, and in the basement is space for a laundry, storage room, fuel room, hot water tank, etc. The members of the Blount family resided at Seamarge from 1908 or 1909 until some time after the death of Mr. Blount in 1921. One of the contractors was paid by Mr. Blount $58,000 or $59,000 for labor and materials going into the property, but the sum did not include all the costs of the materials and other expensive construction items. The record sustains the conclusion that the owner invested in this property, from time to time, an amount or sum ranging from $90,000 to $125,000. In a bankruptcy proceeding the owner fixed the value of Seamarge at approximately $75,000.

Counsel for appellants in appeals Nos. 1 and 2, supra, admit the execution and delivery by the Farnhams of the purchase-price notes and mortgages and payment by them to the appellees of large sums of money and the acceptance of a deed of conveyance; and counsel contend that the owners of Seamarge and their agents by false and fraudulent representations induced the appellants to accept the deed and execute and deliver the purchase-money notes and mortgages. The appellants were residents of the State of Michigan and ignorant of and not informed as to Florida real estate values, and relying exclusively upon the untrue statements and false representations of the owners and their agents they acted thereon to their injury and paid out large sums of money, and for the first time, some time after going into the possession of the property learned and realized the falsity of the representations to their detriment and financial injury. The appellants assert that they did not receive the value contracted for when paying the money, accepting the deed and executing the notes and mortgages, and elected to retain the property conveyed and recoup their losses against the amount due under the purchase-price notes and mortgages,--not for the amount stipulated in the total sum of $125,000, but for the market value of the property conveyed when purchased.

This court had before it pleas of recoupment in the case of Marianna Lime Products Co. v. McKay, 109 Fla. 275, 147 So. 264, 266, when we, in part, said:

'Each of the pleas in question was a plea in recoupment of damages, and each of them except the third amended plea was based upon an alleged breach of a verbal warranty asserted to have been made at the time of the consummation of the trade evidenced by the written contract sued on but not referred to therein. The third plea was for recoupment of damages for an alleged breach by the promisor of a term of the written contract itself.

'A plea of recoupment is purely defensive. It rests on the principle of allowing evidence in reduction of the plaintiff's damages to be introduced, where the plaintiff sues on a contract consisting of mutual stipulations made at the same time, the defendant being allowed to defend against the plaintiff's claim for damages by recouping his own damages that are alleged to have arisen by reason of plaintiff's breach of another part of the same contract, whether the contract consists of one or several parts. Payne v. Nicholson, 100 Fla. 1459, 131 So. 324; Jarrett Lbr. Co. v. Reese, 66 Fla. 317, 63 So. 581; Delco Light Co. v. John LeRoy Hutchinson Properties, 99 Fla. 410, 128 So. 831. A plea of recoupment implies that plaintiff has a cause of action, but asserts that defendant, too, has a counter cause of action growing out of a breach of some other part of the same contract on which plaintiff's action is founded, or for some other cause connected with that contract. See 57 C.J. 358.'

Peacock Hotel, Inc., et al. v. Shipman, 103 Fla. 633, 168 So. 44, involved the foreclosure of purchase-price notes and mortgage on a hotel. One year after the conveyance of the hotel and the giving of the notes and mortgage the mortgagors set up as a defense against the foreclosure fraud and misrepresentation, and this court, held that the defense was untimely and lacking in diligence, when we, in part, said (text 103 Fla. pages 638, 639, 138 So. page 46):

'Where rescission is asked for of a contract for the purchase of property upon the ground of a fraudulent oral misrepresentation of a material existing fact affecting the nature or usefulness of the property, the fact about which the...