Fox v. Korshinsky

• Decision Date: 09 April 1929
• Citation: 121 So. 560,97 Fla. 503
• Parties: FOX v. KORSHINSKY.
• Court: Florida Supreme Court

121 So. 560

97 Fla. 503

FOX v. KORSHINSKY.

Florida Supreme Court, Division A.

April 9, 1929

Suit by H. Korshinsky against W. F. Fox. A demurrer to the bill was overruled, and defendant appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

Bill for specific performance of land contract held not demurrable, because defendant's wife did not execute contract with husband. Bill for specific performance of contract for sale of land held not demurrable, on ground that defendant's wife did not execute contract with her husband, where bill alleged that complainant did not know defendant was married and offered to accept deed from defendant alone without abatement of price for value of wife's dower.

Bill for specific performance of land contract held not demurrable for variance in description of property between bill and contract. Bill for specific performance of contract for sale of land held not demurrable for alleged variance in description of property between allegations of bill and contract where contract was made part of bill and incorporated in it.

Bill for specific performance held not demurrable for indefiniteness of land contract, notwithstanding absence of provision for interest and amount of deferred payments. Bill for specific performance of land contract held not demurrable, on ground that terms of contract were indefinite where price was stated with provision for down payment and there was provision that purchaser was to assume all city liens, although nothing was said about interest nor in what sums deferred payments were to be made.

As respects specific performance of land contract, provisions of contract as to purchase price, time of payment, and description of property held sufficiently definite.

Purchase price and time of payment held sufficiently specified, and description of property to be conveyed was sufficient in action for specific performance of land contract where 'Lot 13, Block M., Riverview Sub.' was to be sold purchaser 'to pay $3,000 for same in the following manner, $1100 cash, and the balance as follows: $1900.--Pay 1-2-3 years.'

Appeal from Circuit Court, Dade County; A. J. Rose Judge.

COUNSEL

Lilburn R. Railey, of Miami, for appellant.

Evans & Mershon and Thomas M. Johnston, all of Miami, for appellee.

OPINION

ELLIS, J.

This suit is for the specific performance of a contract for the sale of land. The contract is in writing. It was attached to the bill made a part of it and marked Exhibit 'A.' The contract is as follows:

'Exhibit A.

'Citizens' Loan & Savings Co.

'201 W. Flagler Street

Phone 4341

'Real Estate.

'Agreement of Purchase.

Miami, Fla., 9-17-1924.

'I hereby offer, and agree to purchase through the Citizens' Loan & Savings Co., agents or owner, the following described property:

'Lot 13, Block M, Riverview Sub.

and to pay $3,000.00 for same in the following manner, $1100.00 cash, and the balance as follows: $1900--Pay 1-2-3 years and assume all city liens.

'This deal to be closed at once. And I herewith tender $100.00 as deposit to apply on the purchase price of the above mentioned property if accepted by the owner, with the understanding that the same is to be returned to me provided the proposition is not accepted.

'H. Korshinsky.

'J. M. Brown, Witness.

'Acceptance.

'I hereby accept the above offer, and agree to same, and acknowledge receipt of $100.00 of the above amount, and agree to pay the Citizens' Loan & Savings Co. when the deal is consummated $150.00 being 5% of the sale price.

'W. F. Fox.

'Witness: Brown, Salesman for the Citizens' Loan & Savings Co.'

A general demurrer to the bill was interposed, the grounds of which are that the contract is not sufficient under the statute of frauds to entitle the complainant to specific performance; that the description of the property is insufficient; that there is a variance in the description of the property as set out in the bill from that set out in the contract; that the complainant did not tender payment or delivery of the mortgage provided for in the contract; and that the bill shows that the defendant is a married man and his wife did not join in the execution of the contract.

The demurrer was overruled, and the defendant appealed.

There was no error.

While the wife did not execute the contract with her husband, the bill alleges that the complainant did not know the defendant was married, and offered to accept a deed from the defendant alone without abatement of Price for the value of the wife's dower. See Fisher v. Miller, 92 Fla. 48, 109 So. 257; Bland v. Knoblock, 92 Fla. 254, 109 So. 415; Rundel v. Gordon, 92 Fla. 1110, 111 So. 386.

The allegations of the bill, as to complainant's willingness and ability and readiness to comply with the contract on his part, are sufficient, and meet with the requirements of good pleading, especially as it apears that the defendant said to the complainant that he could not deliver the property and would not do so. The allegations of the bill with respect to the tender are sufficient. See Taylor v. Mathews, 53 Fla. 776, 44 So. 146; Orlando Realty Board Bldg. Corp. v. Hilpert, 93 Fla. 954, 113 So. 100.

As to the variance in description of the property between the allegations of the bill and contract, the latter is made a part of the bill and is incorporated in it; so that, if the description is sufficiently clear, it answers the requirements of correct pleading in that regard. The terms of the contract are definite. The price was to be $3,000, of which $1100 was to be paid in cash, and the balance, $1900, payable in one, two, and three years; purchaser to assume all city liens. $100 was paid on account; nothing said about interest nor in what sums the deferred payments were to be made. But it seems to us that is not sufficient to render the contract obnoxious to the requirements of the rule. The purchase price and time of payment are sufficiently specified. The description of the property to be conveyed is sufficient under the rule. See Simons v. Tobin, 89 Fla. 321, 104 So. 586.

The order overruling the demurrer is affirmed.

TERRELL, C.J., and BROWN, J., concur.

STRUM and BUFORD, JJ., concur in the opinion and judgment.

CONCURRING

STRUM J.

I concur in the view of Mr. Justice ELLIS that the description contained in the memorandum here in question is a sufficient compliance with the statute of frauds. While the court cannot...