Hook v. Bomar
Decision Date | 12 September 1963 |
Docket Number | No. 20063.,20063. |
Citation | 320 F.2d 536 |
Parties | Howard M. HOOK, Appellant, v. Thomas J. BOMAR, as Trustee for Kitimat Corporation, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
H. T. Maloney, Patterson & Maloney, Fort Lauderdale, Fla., for appellant.
Thomas B. DeWolf, David P. Karcher, Helliwell, Melrose & DeWolf, Miami, Fla., for appellee.
Before TUTTLE, Chief Judge, and JONES and BELL, Circuit Judges.
Kitimat Corporation filed a reorganization petition under Chapter X of the Bankruptcy Act. Thomas J. Bomar was appointed Trustee of the property and assets of the debtor Kitimat Corporation. This controversy was referred to the Referee as Special Master. The nature of the controversy and the factual situation from which it arose are set forth in the Special Master's Report. The appellant and the appellee are in agreement as to the correctness of the facts as found by the Special Master. The Master's findings and conclusions appear in the margin.1 Objections of the Trustee to the Special Master's Report were sustained by the district court. In its order, the district court stated that the retention of the sums paid, absent proof of damages, would be a forfeiture and a penalty so shocking to the judicial conscience as not to be sustained. Hook has taken this appeal. Both parties urge that the Florida precedents sustain their contentions.
In 1948 the Supreme Court of Florida had before it a case where the purchaser had defaulted in the performance of a contract of sale and purchase of real property for a consideration of $67,500. Receipt by the vendor of earnest money in the amount of $6,200 was acknowledged. The contract provided, among other things, that in case of default by the purchaser, and at the option of the vendor, the contract should be terminated and "the purchaser shall forfeit said earnest money, and the same shall be retained by the seller as liquidated damages." The purchaser stopped payment on the $6,200 check he had given in making his earnest money payment and the vendor brought suit for the amount it represented. The statements by the court have declared the principles by which the Florida courts have been guided in like cases. We therefore set forth in extenso these principles thus stated:
The primary reliance of the appellants is placed upon Beatty v. Flannery, 49 So.2d 81, decided by the...
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Vines v. Orchard Hills, Inc.
...of the more recent cases support restitution in order to prevent unjust enrichment and to avoid forfeiture. See, e. g., Hook v. Bomar, 320 F.2d 536, 541 (5th Cir. 1963); Amtorg Trading Corporation v. Miehle Printing Press & Mfg. Co., 206 F.2d 103, 108 (2d Cir. 1953); Honey v. Henry's Franch......
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Kellogg v. Shushereba
...clause)—by making the percentage of the forfeiture a factor in analyzing whether unjust enrichment exists. See Hook v. Bomar, 320 F.2d 536, 541 (5th Cir.1963) (applying Florida law and noting the importance of the “ratio ... between down payment and purchase price” in determining unjust enr......
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Bean v. Walker
...proportion of the purchase price paid is so substantial that the amount forfeited would be an invalid "penalty" (see, e.g., Hook v. Bomar, 320 F.2d 536 (5th Cir.1963) Rothenberg v. Follman, 19 Mich.App. 383, 172 N.W.2d 845 (1969); Morris v. Sykes, 624 P.2d 681 Johnson v. Carman, 572 P.2d 37......
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Krupnick v. Guerriero
...significance, we have calculated and starred the percentage of the total contract price which the deposit represented. 2 Hook v. Bomar, 320 F.2d 536 (5th Cir.1963) (where buyer defaulted because of financial inability to conclude the purchase, held it would shock the conscience to permit th......