Hall v. Northern & Southern Co.

• Decision Date: 05 March 1908
• Parties: HALL et al. v. NORTHERN & SOUTHERN CO.
• Court: Florida Supreme Court

46 So. 178

55 Fla. 242

HALL et al. v. NORTHERN & SOUTHERN CO.

Florida Supreme Court, Division A.

March 5, 1908

On Rehearing, April 15, 1908.

Error to Circuit Court, Marion County; William S. Bullock, Judge.

Action by the Northern & Southern Company against Thomas C. Hall and J. D. Pope, partners as Hall & Pope. Judgment for plaintiff and defendants bring error. Reversed.

Syllabus by the Court

SYLLABUS

Where a bilateral contract is made for future performance, and before the time for performance arrives one party positively and unequivocally repudiates the entire contract, or voluntarily puts it out of his power to perform his part, the other party may treat the contract as rescinded. In many cases where the repudiation or voluntary act rendering performance impracticable is entire and absolute, actions may be brought as for a breach of the contract, even before the time for performance has arrived.

The mere refusal to accept tendered payments of purchase money under a contract for the sale of real estate may affect the rights of the vendor; but such refusal is not itself such a repudiation of the contract as gives the vendee a right of action as for a breach of the contract to convey, when the time for the conveyance to be made has not arrived.

If the right to take possession of land contracted to be sold is dependent upon a contingency, there should be allegations showing that the contingency has happened, and that an effort was made to take possession, without success, to plaintiff's injury, where damages for failure to get possession are sought.

General allegations that a vendor wholly refused to carry out his contract to convey land should be taken in connection with the specific allegations of breaches, and, if the specific allegations are insufficient, the general allegations also fail.

Where a contract is made to convey land, and before the time for the conveyance has arrived the vendor conveys his rights in the lands to a third party, the conveyance is subject to the valid rights of the contract vendee, and such a conveyance does not necessarily render it impossible for the contract to be observed.

On Rehearing.

If a declaration fails to allege substantive facts that are essential to a right of action, the trial court or the appellate court may take notice of such fatal defect and make a proper disposition of the cause.

In an action for breach of contract, if no cause of action is alleged, no damages can be recovered. A demurrer to the declaration upon the ground 'that it does not appear that the plaintiff has sustained any damage' should be sustained.

Where a contract for the sale of land contains a provision that 'upon the payment of the first deferred payment hereinafter mentioned, the second parties shall be entitled to take possession of any of said lands and cut the timber therefrom, provided same is not being used by the first [parties] for turpentine purposes,' a declaration in an action for a breach of the contract should contain allegations showing that the plaintiff is 'entitled to take possession' and that possession had been denied him to his injury.

COUNSEL

Wm Hocker, for plaintiffs in error.

R. L. Anderson, for defendant in error.

OPINION

WHITFIELD J.

On February 4, 1907, the defendant in error brought an action against the plaintiffs in error in the circuit court for Marion county to recover damages for an alleged breach of a contract to convey lands.

The declaration in two counts alleges in brief that the Northern & Southern Company, a corporation, entered into a written contract on January 9, 1904, with Hall & Pope, whereby, in consideration of $2,25 per acre for certain described lands, Hall & Pope did 'agree to execute and deliver to the said' Northern & Southern Company, 'or its assigns, a good and sufficient deed of conveyance upon payment by the said' Northern & Southern Company, 'or its assigns, of the said purchase price of $2.25 per acre, as hereinafter provided.' 'And for a like consideration the said' Hall & Pope 'do hereby agree, upon the payment of the said purchase price of $2.25 per acre, as hereinafter provided, to execute and deliver to' the Northern & Southern Company 'a good and sufficient lease, conveying to' said company 'the timber upon' certain described lands, 'and vesting in the said' company 'a leasehold interest in said lands, for the purpose of utilizing the timber for mill and other purposes for the term of six (6) years from the date hereof.' 'Said land is estimated * * * to be 4,235 acres, and upon the payment of the first deferred payment, hereinafter mentioned,' the said Northern & Southern Company 'shall be entitled to take possession of any of said lands and cut the timber therefrom, provided same is not being used by' Hall & Pope 'for turpentine purposes, and the right to use same for turpentine purposes for two years from date hereof is reserved by' Hall & Pope. 'In consideration of the foregoing covenants and agreements the said' Northern & Southern Company 'has this day paid to the said' Hall & Pope 'the sum of one hundred ($100.00) dollars upon the purchase price of said lands and said timber leases, receipt of which is hereby acknowledged by the said' Hall & Pope; and the said Northern & Southern Company 'agrees to pay to the said' Hall & Pope, 'or their assigns, upon the purchase price of the lands and leases above mentioned, the following sums of money, at the time and in the manner hereafter specified, viz.: $3,142.91 payable 24 months after date hereof, $2,091.94 payable 30 months after date hereof, $2,091.94 payable 36 months after date hereof, and $2,091.94 payable 42 months from date, which deferred payments shall draw interest from January 9, 1906, at the rate of eight per cent. (8%) per annum until paid, and shall become due and payable at the Central National Bank at Ocala, Florida.' The plaintiff further alleges that the payment of the $100 was made as stated in the contract on the date the contract was entered into, and that on January 9, 1906, plaintiff tendered to defendants and offered to pay them the further sum of $3,142.91, which was the payment due under the terms of said contract, and that the plaintiff on July 9, 1906, also offered and tendered to the defendants the further sum of $2,091.94 due that day under the contract; that defendants refused to accept said payments when offered and tendered as aforesaid by the plaintiff, and wholly refused to carry out and perform each and every of the covenants contained in the contract; that the defendants, on January 9, 1906, and on July 9, 1906, when plaintiff tendered and offered to pay said moneys as aforesaid, stated to the plaintiff that they (the defendants) had on or about December 1, 1905, relinquished, transferred, assigned, sold, and conveyed all their right, title, interest, and claim in and to all the lands, timber, timber leasehold rights, and all other property described in said contract to other named parties, and that said parties were then in possession of all of said lands, timber, leasehold rights, timber rights, and other properties mentioned in said contract, whereby the defendants had, by their acts as aforesaid, rendered themselves unable, and had made it impossible, to perform and carry out the covenants, terms, and provisions of said contract with the plaintiff; that said lands, timber leasehold, and timber rights, were on December 1, 1905, and on January 9, 1906, and on July 9, 1906, of a value greatly in excess of $2.25 per acre, and that the same were then and there of the value of $5 per acre; and plaintiff claims $20,000 damages.

The second count differs from the first, in that it alleges that defendants, on or about December 1, 1905, wholly disabled themselves to carry out and perform the contract, and rendered the performance of the same by the defendants impossible, by conveying to other parties all the rights of the defendants in the lands, and by putting such parties in possession of the lands, whereby the said contract was by the defendants wholly broken and repudiated.

The declaration was demurred to. If the allegations of the declaration do not state a cause of action, or if the allegations show the plaintiff had no right of action when the action was begun, there can be no recovery.

The action is obviously brought to recover as damages, not the portion of the purchase price that had been paid, but the increase in the value of the lands over the contract price between the date of the contract to convey the lands and the dates named in the daclaration, all of which dates were prior to the date the conveyance of the lands was to be made under the contract.

A breach of the contract is essential to a recovery of damages in action at law. $The breaches alleged consist in (1) the refusal of the defendants to accept the first two deferred payments of the purchase money tendered by the plaintiff under the contract; (2) wholly refusing to carry out the contract; and (3) the transfer to other parties by the defendants of all their rights in the lands contracted to be conveyed to plaintiff, whereby defendants made it impossible for them to perform their agreement with the plaintiff, and whereby the contract was by the defendants wholly broken and repudiated before the plaintiff was entitled to the possession or to a conveyance of the lands under...