Gabel v. Simmons

• Decision Date: 02 August 1930
• Citation: 129 So. 777,100 Fla. 526
• Parties: GABEL v. SIMMONS et al.
• Court: Florida Supreme Court

129 So. 777

100 Fla. 526

GABEL v. SIMMONS et al.

Florida Supreme Court

August 2, 1930

Commissioners' Decision.

Error to Circuit Court, Dade County; A. J. Rose, Judge.

Suit by J. A. Simmons and another against G. W. Gabel. Judgment for plaintiffs, and defendant brings error.

Affirmed.

COUNSEL Stapp, Gourley, Vining & Ward, of Miami, for plaintiff in error.

Hudson & Cason, of Miami, for defendants in error.

OPINION

ANDREWS C.

Defendants in error, as plaintiffs below, brought suit in the circuit court of Dade county against G. W. Gabel to recover $7,500 and based their cause of action upon a special provision of a real estate purchase contract entered into on August 15 1925, whereby plaintiffs agreed to purchase three lots for the total price of $30,000, and paid $1,500 at the time and agreed to pay $6,000 additional on closing of the deal.

The special provision referred to above reads as follows:

'If purchaser is dissatisfied after 90 days from closing, all monies paid shall be returned with 10% interest.'

On August 28, 1925, the transaction for the purchase was closed by delivery of a contract for deed and by paying of the $6,000 balance of the first payment. It appears that some controversy arose as to the necessity of including the above-quoted special provision in the contract for deed. The defendant alleged in his pleas which were stricken that as the quoted clause in the purchase contract was not included or merged into the contract for deed at the closing of the deal, such clause was not enforceable. This contention is not tenable, as is apparent from the whole transaction; in fact, the quoted sentence in the contract of purchase constituted a special agreement which was not appropriate to be included in the contract for deed which evidenced the date of closing the deal.

At the close of the taking of testimony a verdict was directed for plaintiffs.

The undisputed evidence is that at the expiration of the ninety days (and even before), and within a reasonable time, the purchasers requested the return of their first payment with interest, and on December 31, 1925, about one month after the expiration of the said ninety days, the defendant Gabel wrote plaintiffs a letter which was attached as an exhibit to plaintiffs' declaration and also filed in evidence, in which letter he renewed or confirmed--if that were necessary--the agreement to repay the $7,500 by agreeing to make such payment at the expiration of 90 days from the date of said letter if plaintiffs were still dissatisfied with their purchase. This letter of December 31, 1925, contained the ex parte statement that the renewal of the promise in writing and agreement to postpone the return of the money for an additional ninety days was made at the instance or 'desire' of plaintiffs to allow them to dispose of the property at a profit to themselves, but such construction is not justified by the very nature of the controversy at the time, nor by the evidence at the trial. It also appears from transaction as a whole that the new promise did not affect the plaintiffs' right to a return of the money whether given at plaintiffs' instance or at that of the defendant for at the time such renewed promise was given, plaintiffs had already demanded in due course, the return of their first payment.

In Caveny v. Curtis, 257 Pa. 575, 101 A. 853, 854, the court said:

'The general rule is that preliminary agreements and understandings relating to the sale of land become merged in the deed. This rule, however, does not apply to independent covenants or provisions in an agreement of sale not intended by the parties to be incorporated in the deed. In such case the delivery of the conveyance is merely a part performance of the contract, which remains binding as to its further provisions.' See also 2 Willison on Contracts, 1252.

In 4 Paige on the Law of Contracts (2d Ed.) § 2568, the rule is stated as follows:

'A deed which is delivered after a contract for the sale of realty has been made, but which is not delivered by the vendor as in full performance of the contract, and is not accepted by the purchaser as in full performance of the contract, and which does not cover the entire...