Frissell v. Nichols

• Decision Date: 01 August 1927
• Citation: 94 Fla. 403,114 So. 431
• Parties: FRISSELL et ux. v. NICHOLS et al.
• Court: Florida Supreme Court

114 So. 431

94 Fla. 403

FRISSELL et ux. v. NICHOLS et al.

Florida Supreme Court

August 1, 1927

Rehearing Denied Oct. 13, 1927.

En Banc.

Suit by W. H. Nichols and others against Glen C. Frissell and wife to compel a conveyance of land. From an order overruling a demurrer to the complaint, defendants appeal.

Reversed with directions.

Syllabus by the Court

SYLLABUS

Though it requires mutual assent, option confers no rights unless it carries elements necessary to enforceable contract; offer or option to sell, accepted, becomes contract binding on both parties. Though a contract so far as mutual assent is concerned, an option confers no rights unless it carries the elements necessary to an enforceable contract. 6 R. C. L 603. When an offer or option to sell is accepted, it becomes a contract for sale binding on both parties thereto.

Unless stipulated to contrary, right to assign is incidental to and runs with lease. Unless stipulated to the contrary, the right to assign is incidental to and runs with a lease.

'Executory contracts of strictly personal nature' are ended by contractor's death; strictly personal executory contracts are executed with implied condition that either party's death shall dissolve them; contracts by authors to write books, by attorneys to render services, by physicians to cure diseases, by teachers to instruct, by masters to teach apprentices, and those involving purchaser's personal credit are dissolved on death of either party. 'Executory contracts of a strictly personal nature' are determined by the death of the contractor. Such contracts are executed with the implied condition that the death of either party shall dissolve them. Contracts of authors to write books, of attorneys to render professional services, of physicians to cure particular diseases, of teachers to instruct pupils, of masters to teach apprentices, and contracts involving the personal credit of the purchaser are among those included in this list.

Parties may make any contract personal one, regardless of subject-matter; parties' intention, expressed in contract, to make it personal one effects same object as where law implies such intention from subject-matter. It is competent for the parties to make any contract a personal one, no matter what the subject-matter. If the intention is manifested by the parties in express terms in the contract itself, it effects the same object as where the law implies the intention from the subject-matter.

The rule seems to be that, if the contract with a deceased person is executory and the personal representative can fairly and fully execute it as well as the deceased himself could have done, he may do so and enforce the contract. On the other hand, the personal representative can be required to complete such a contract, and if he fails to do so he may be compelled to pay damages out of the assets in his hand.

Demarcation between purely personal contracts ended by party's death and those which personal representative can complete can only be determined in many cases from circumstances. On the whole it may be said that the line of demarcation between contracts that are purely personal in their nature and determined by the death of the party who has the nonassignable right, or upon whom rests a nondelegable duty under the contract, on the one hand, and contracts which the personal representative could complete as well as the deceased could have done, on the other hand, is not clearly defined and can only be determined in many instances by an inspection of the facts and circumstances in the particular case.

Law presumes that party contracting intends to bind personal representatives unless contract is in some way personal to him, or unless language shows such presumption is not reasonable. The law indulges the presumption that one making a contract intends to bind his executors and administrators unless the contract is in some way personal to the testator or unless the language of the contract is such that a presumption of this kind could not be reasonably indulged.

Consideration is primary element moving execution of contract. Consideration is the primary element moving the execution of a contract.

Option in lease to purchase property leased held terminated by death of one lessee, in view of personal element required. Option in lease for lessees to purchase property, in view of provisions requiring notes secured by mortgage to be executed and signed by lienees and their wives, held terminated by death of one lessee. Appeal from Circuit Court, Dade County; A. J. Rose, Judge.

COUNSEL

Heffernan & Hoffman, Brown & Stokes, and Loftin, Stokes & Calkins, all of Miami, for appellants.

Mitchell D. Price, Robert J. Boone, and Price, Price, Neeley & Kehoe, all of Miami, for appellees.

OPINION

TERRELL J.

On December 15, 1919, Glen C. Frissell joined by his wife, Myrtilla Frissell, of Dade county, Fla., executed a lease to Phillip Ullendorff and W. H. Nichols of the said county and state The lease was for a term of 5 years, beginning January 1, 1920, covered certain real estate in Miami, Fla., and contained a provision for purchase by the lessees reading as follows:

'And the said lessors, in the execution of this instrument, and in consideration of the payment of the rent and the performance of the covenants on behalf of the lessees as hereinabove recited, have by these presents, granted, bargained, sold, conveyed, and assigned, and do hereby grant, bargain, sell, convey, and assign, unto the said Phillip Ullendorff and W. H. Nichols an option or right to buy the above-described property at any time on or before January 1, 1925, for a total consideration of $40,000; said consideration to be paid as follows, to wit: $5,000 to be paid in cash at the time of the delivery of deed; the remaining $35,000 to be secured by a mortgage to be signed by the said Phillip Ullendorff and the said W. H. Nichols, joined by their respective wives, if any, Said mortgage to secure seven promissory notes in the sum of $5,000 each; said notes to be written upon the usual bank form and to bear interest from date at the rate of 8 per cent., payable semiannually, and to provide for reasonable attorney's fees if collected by suit or by an attorney; said notes to fall due in the following order, to wit:

'Note No. 1, one year after date;

'Note No. 2, two years after date;

'Note No. 3, three years after date;

'Note No. 4, four years after date;

'Note No. 5, five years after date;

'Note No. 6, six years after date;

'Note No. 7, seven years after date.

'The mortgage to be executed by the lessees herein as aforesaid, to secure said sum of $35,000, shall be on the usual form, and shall be a first mortgage lien upon the above-described property, and shall provide for the carrying of $10,000 insurance upon said property, the premiums of which are to be paid by the mortgagors.'

Subsequent to the execution of the foregoing lease, Phillip Ullendorff died, leaving a last will and testament in which he bequeathed his entire estate, including his interest in said lease, to the Biscayne Trust Company, as trustee, with full power to manage and dispose of same. After the death of Phillip Ullendorff his widow married Claude P. Gossett, one of the appellees herein. Prior to his death, W. H. Nichols and Phillip Ullendorff conveyed the said lease to Nichols-Ullendorff Realty Company, a corporation owned and controlled by the said Nichols and Ullendorff.

On December 9, 1924, the Nichols-Ullendorff Realty Company through its attorney advised Glen C. Frissell that it was ready to exercise the option to purchase in the lease as herein quoted, and was willing to do so by paying the $5,000 cash and...