Gilman v. Butzloff
| Decision Date | 11 May 1945 |
| Citation | 22 So.2d 263,155 Fla. 888 |
| Parties | GILMAN v. BUTZLOFF et al. |
| Court | Florida Supreme Court |
Rehearing Denied June 12, 1945.
Appeal from Circuit Court, Hillsborough County; L. L. Parks judge.
Mabry, Reaves Carlton, Anderson & Fields, of Tampa, for appellant.
Knight & Thompson, of Tampa, for appellees.
The appeal brings for review judgment in favor of defendants in a suit wherein plaintiff sued defendants alleging that 'defendants, for that on March 15, 1943, the plaintiff agreed to buy from the defendants, and the defendants agreed to sell to the plaintiff
'The East 42 3/4th Feet of Lot Three (3) of Block Seven (7), General Map of Tampa known as Bon Air Hotel, 212 1/2 Tyler Street, Tampa Florida.
'A copy of the contract of sale is hereto attached, marked Exhibit 'A' and made a part hereof. One of the provisions of the said contract was and is that the property should be turned over to the plaintiff on or before thirty-five (35) days from the date of the contract, but the said property was not turned over to the plaintiff within the said thirty five (35) days, notwithstanding the plaintiff fully complied with all provisions of the said contract on his part to be berformed and insisted, and continued to insist, that the defendants perform their obligation to turn over said property to him. It was not until the 16th day of October, 1943, that the property was turned over to the plaintiff by the defendants, and the plaintiff during the said period of time from the 20th day of April, 1943, until the 16th day of October, 1943, was wrongfully kept out of the possession of said property and deprived of the income which the said property would have yielded to the plaintiff, to the great damage of plaintiff.
'Wherefore, the plaintiff sues the defendants and claims the sum of $5000 damages.
'Wherefore, the plaintiff sues the defendants and claims damages in the sum of $5000.'
To this declaration defendants filed a plea to each count. The original plea to the First Court was amended to read as follows:
'The defendants, Joseph P. Butzloff, H. Schenck and The Exchange National Bank of Tampa, a corporation, Trustees of the Estate of Annie B. Schenck, by Knight & Thompson, their attorneys, for plea to the first count of plaintiff's declaration say that the plaintiff, W. C. Gilman, on or about April 9, 1944, accepted from the defendants the property described in said count subject to the tenancy of those tenants then in possession thereof and took delivery from the defendants of a deed conveying said property to him and his wife Mary A. Gilman.'
The plea to the Second Count was as follows:
'And for plea to the Second Count of plaintiff's declaration the defendants say that the plaintiff on April 9th, 1943, accepted a conveyance of the property described in the First Count of said declaration and that at the time he did so the said building and the fixtures therein were in the same in at the time of the execution of the contract of sale referred to in said declaration.'
Plaintiff demurred to pleas to both Counts of the declaration, the chief grounds thereof being, in effect, that the pleas sought to set up as a defense in bar a modification by parole of a written agreement. The demurrer was overruled, and properly so. The pleas did not set up as a defense an alleged modification of an executory contract, but did set up a waiver of the terms of the executory contract and a consummation and satisfaction of the contract as affected by the waiver.
There was substantial evidence in the record to prove the...
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