Goldfarb v. Robertson

• Decision Date: 23 September 1955
• Citation: Goldfarb v. Robertson, 82 So.2d 504 (Fla. 1955)
• Parties: Stanley GOLDFARB and Ruth Goldfarb, his wife, Appellants, v. F. M. ROBERTSON, Appellee.
• Court: Florida Supreme Court

Page 504

82 So.2d 504

Stanley GOLDFARB and Ruth Goldfarb, his wife, Appellants, v.F. M. ROBERTSON, Appellee.

Supreme Court of Florida, Special Division A.

Sept. 23, 1955.

Weinkle & Kessler, Miami, for appellants.

Durant & Durant, Miami, for appellee.

ALLEN, Associate Justice.

This is an appeal from a final decree of the Circuit Court for Dade County in chancery entered for the appellee Robertson and against the appellants Goldfarb in a proceeding instituted against them by interpleader filed by Guaranty Title & Abstract Corporation, escrow agent in a sales transaction between Robertson as seller and the Goldfarbs, appellants, as buyers.

The appellee, Robertson, sold to the appellants certain real estate and a business known as National Builders Supply Co.By the terms of the deposit-receipt agreement between the parties it was agreed 'that the buyer and seller will operate the business as of January 8, 1954, the seller to make no purchases.Although the closing date of the transaction will not be effected until within fifteen days from the execution of the agreement, nevertheless, it is agreed that the purchase of the business, for all intents and purposes is effected as of January 8, 1954.'

The buyer took possession and made the required initial part payment of $2,500 to be credited as part payment of the purchase price, but at the time of closing refused to consummate the deal until the seller presented books and records showing paid invoices for certain materials in stock which they allegedly suspected to be stolen or fraudulently obtained.The appellee, orally agreed to produce such records, although the agreement between the parties contained no such provision, but, by virtue of some further disagreement between the partiesthe bills were not produced.The appellants refused to complete the purchase agreement and abandoned possession.

After personally hearing the testimony in the cause the lower court concluded 'that the buyer had defaulted and that the seller was entitled to the $2,500 deposit.'

The escrow contract agreement provided, 'It is agreed between the buyer and seller that the buyer and seller will operate the business as of January 8, 1954, the seller to make no purchases.Although the closing of the transaction will not be effected until within fifteen days from the execution of this agreement, nevertheless, it is agreed that the purchase of the business, for all intents and purposes, is effected as of January 8, 1954, and that all proceeds of the business from January 8, 1954, shall be placed in escrow with Rollo E. Karkeet, Esq., and that whatever monies accumulate in that account shall be turned over to the buyer at the time of the closing, less any expense of operations since January 8, 1954.'The contract also contained the following provision: 'The seller agrees that, in view of the fact that the effective date of sale is January 8, 1954, the buyer will be permitted to be on the premises at any time during the normal working day, and may conduct himself on the premises as though it was his business.'

The record in this case shows that the buyer made application for telephone service in his name, made application for electricity, gave information for directory listing of the business and initialed sales receipts.Other evidence appeared from the record which showed the buyer was in possession, and had taken over the business prior to the proposed closing date of January 21, 1954.The buyer's excuse for failing to carry out the contract was based on alleged statements made by the manager of the seller's business that cast suspicion on the title to the merchandise sold by the seller.Subsequently this man in response to the question, 'Did you ever tell him that you could get doors cheap because they were stolen?'Said 'A.No such a thing.In operating that business for eight years, that place, which is heavy building material, it would sure come out in the wash, and National Builders Supply has a good reputation all over.You can verify it in Dun & Bradstreet; Coral Gables Supply * * *.

'The Court: Did you make any statement which indirectly indicated that some of these doors had been stolen?

'The Witness: No, Judge; no such thing.

'The Court: You did not tell Mr. Goldfarb then, or Mrs. Goldfarb, that this driver, Stanley, had delivered stolen doors that you did not pay for?

'The Witness: No; Judge.

'The Court: Was there any such arrangement?

'The Witness: No sir.'

The lower court heard the evidence in this case personally and determined that the buyer had no just cause for not completing the purchase of the property and had in effect abandoned the same after purchase.

No authority needs to be cited for the proposition that this court is not entitled to substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given to the evidence by the trial court.SeeHall v. Adams, 155 Fla. 1, 19 So.2d 412.

The appellant states the following question in his brief: 'Where there is absent any provision for stipulated damages or for forfeiture of deposit in a contract for the sale and purchase of property, and where the seller has failed to show any damages, upon a finding that the contract purchaser is in default, is the measure of damages the sum of money deposited by the purchaser upon signing the contract?

'The appellants submit that the lower court incorrectly answered this question in the affirmative.'

...