Home Seekers' Realty Co. v. Menear
| Decision Date | 09 June 1931 |
| Citation | 102 Fla. 7,135 So. 402 |
| Parties | HOME SEEKERS' REALTY CO. v. MENEAR. |
| Court | Florida Supreme Court |
Suit by Mrs. D. C. Menear, joined by her husband, against the Home Seekers' Realty Company. From an order overruling a demurrer to the bill of complaint, defendant appeals.
Order affirmed.
BUFORD C.J., dissenting. Appeal from Circuit Court Broward County; Vincent C. Giblin, judge.
Leroy McGregor, of Hollywood, for appellant.
Price Price, Kehoe & Kassewitz, of Miami, for appellees.
The demurrer to the bill in this case is a general demurrer to the bill as a whole. Therefore, if the bill contained equity the court below was not in error in overruling the demurrer. It seems to us that, while some of the allegations may have been defective, the bill did contain equity. The bill seeks rescission and cancellation of a contract for the purchase of a lot in a subdivision known as Hollywood Hills First Addition, on the ground that the complainant, the purchaser, was induced to purchase the lot by reason of certain false and fraudulent representations as to certain important improvements which were to be made to the property and in the subdivision, and alleges that said representations were made with the intent to deceive and defraud the complainant, and that the defendant knew them to be false at the time they were made, and that the complainants were in truth and in fact deceived and defrauded thereby, and it appears from the allegations that certain of the false representations concerned existing material facts, as well as improvements to be made in the future. The purchase price of the lot was $4,200; $250 was paid at the time the contract was made in October, 1926, $600 was paid in November, 1925, and $787.50 was paid on April 13, 1926; that the purchasers declined to make any further payments because of the failure and refusal of the defendant to carry out its representations as to improvements; and that the market value of the lot is not more than $100 at the time of the filing of the bill. We think the bill shows that complainant was injured by the alleged fraudulent representations. The bill prays that the defendant be required to refund the moneys paid by the complainant, and upon failure to do so that complainants be decreed to have a vendee's lien against the property and that the same be sold to satisfy said lien, etc.
This court has recognized the generally accepted doctrine that while a mere failure to carry out promises or representations as to future improvements made by the vendor at the time the purchaser entered into the contract will not justify a rescission of the contract, yet a promise or promissory representation as to a material matter, made without any intention of performing it, or made...
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