Fote v. Reitano
| Decision Date | 26 May 1950 |
| Citation | 46 So.2d 891 |
| Parties | FOTE v. REITANO et al. |
| Court | Florida Supreme Court |
J. F. Gordon and L. G. Egert, Miami, for appellant.
Irving F. Kalback and Roland J. Lavelle, Miami, for appellees.
The plaintiffs, appellees here, filed suit in the court below for the rescission and cancellation of a contract for the purchase and sale of the defendant-appellant's business, being a wheel alignment service. The contract sought to be rescinded, dated December 17, 1947, and styled a 'Deposit Receipt,' recited that $7,000 had been paid down as a deposit on the purchase price of the business, which was $70,000, and provided that the terms of the deal were $20,000 cash and the balance of $50,000 payable over a six-year period in monthly installments. The 'Deposit Receipt' further provided that all necessary instruments for the sale of the business should be executed and the balance due for the completion of the transaction should be paid over, within 14 days from the date thereof. The plaintiffs sought rescission of such contract on the ground that defendant misrepresented the net profit of the business, and prayed for a return of their $7,000 deposit. Relief being granted as prayed, the defendant has perfected this appeal from the final decree of the lower court.
The plaintiffs in their bill of complaint alleged the false representation to be that the net profits of the business were $666 per week which, after a deduction of $250 for amortization of the debt and rent for the premises, would leave a net profit to the plaintiffs of $416 weekly. The Special Master found that the plaintiffs proved that the false representation was that the net profit from the business was $30,000 per year. He also found that the defendant 'misrepresented the income from his business because he did not have an accurate knowledge of his income, or, he was guessing in order to impress the plaintiffs with his income and induce them to purchase his business.' The findings of the Special Master were affirmed by the Chancellor.
We do not decide whether or not there was a fatal variance between the allegata and the probata above referred to, since the final decree must be reversed on other grounds, as will be hereinafter noted.
In the first place, the testimony is conflicting and confusing as between the two plaintiffs themselves, and even as to the individual testimony of the plaintiff Joseph Reitano, as to the exact occasion and the circumstances under which the defendant represented the net profits to be $30,000.00 annually. The evidence in this respect is not sufficiently clear and convincing to sustain the burden of proof imposed upon plaintiffs.
In the second place,...
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...party relying on a misrepresentation must show that it exercised some diligence for his or her own protection. See, e.g., Fote v. Reitano, 46 So.2d 891, 892 (Fla.1950); Adams v. Prestressed Systems Indus., 625 So.2d 895, 897 (Fla. 1st DCA 1993). Florida law defines the due diligence standar......
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...it must appear that the reliance placed on the representation by the other party was justified under the circumstances. Fote v. Reitano, 46 So.2d 891 (Fla.1950); Butts v. Dragstrem, 349 So.2d 1205 (Fla. 1st DCA 1977). In other words, the party to whom the representation is made must not onl......
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