Hughes v. Russell, 79-2451
| Decision Date | 26 November 1980 |
| Docket Number | No. 79-2451,79-2451 |
| Citation | 391 So.2d 256 |
| Parties | James R. HUGHES and Sonia B. Hughes, Appellants, v. Collette L. RUSSELL, Appellee. |
| Court | Florida District Court of Appeals |
Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, Pruitt & Pruitt, and Larry Klein, West Palm Beach, for appellants.
Andrew F. O'Connell of O'Connell & Cooper, P. A., West Palm Beach, for appellee.
Plaintiff/appellee sued defendants/appellants for the return of an $18,500 deposit on a contract for the sale of appellants' home to appellee. Although plaintiff's suit was based upon the existence of a contract between the parties, the trial court declared the contract void yet ordered defendants to return the deposit. We reverse.
The facts are basically uncontested. Mr. Russell, a New York resident, visited Palm Beach briefly while on his way to Europe for a business trip. He briefly inspected a home owned by Mr. and Mrs. Hughes and decided that he and his wife would purchase it. The agreed price was $185,000. Mr. Russell instructed his wife, who was in New York and had never seen the home, to execute and return the deposit receipt contract upon receipt from the sellers who were preparing it. Mr. Russell also told Mrs. Russell to make the necessary deposit of $18,500.
The contract prepared by Mr. and Mrs. Hughes referred to Mr. and Mrs. Russell as the purchasers. The unsigned contract was mailed by the sellers to New York and Mrs. Russell alone signed it on May 26, 1978, and placed the ten per cent deposit in trust with the broker. She returned the contract to Florida where the sellers executed it on May 30, 1978.
Thereafter, prior to closing, Mr. Russell retained a general contractor to inspect the house. Based on the contractor's report which described the property in need of numerous repairs, the Russells decided not to close the transaction. Mrs. Russell filed suit to terminate the contract and for the return of her $18,500 deposit. The complaint alleged the existence of the contract but did not rely upon the contractor's report as a basis for terminating the contract. Instead, the complaint alleged that the contract was subject to termite and plumbing inspections and that the reports of the exterminator and the plumber were unsatisfactory. Based on these two reports, the complaint alleged that plaintiff elected to terminate the contract and retake the deposit.
The defendants filed an answer and counterclaim admitting the existence of the contract but asserting plaintiff to be in breach thereof and seeking to retain the deposit as liquidated damages under the contract.
The case proceeded to trial. At the conclusion of the trial, the court announced that the contract was void because it had not been signed by Mr. Russell. Based on this finding that the contract was unenforceable, the Court ordered return of the deposit. In its final judgment, the...
To continue reading
Request your trial
-
Lee v. Lee, 83-562
...1983); McClung v. McClung, 427 So.2d 350 (Fla. 5th DCA 1983); Holland v. Holland, 406 So.2d 496 (Fla. 5th DCA 1981); Hughes v. Russell, 391 So.2d 256 (Fla. 4th DCA 1980), married men and married women can own, hold, control, dispose of or encumber separate property without the consent or jo......
-
Skinner v. Haugseth
...that he repudiated the contract long before this occurred. The only Florida case reasonably relevant to the subject is Hughes v. Russell, 391 So.2d 256 (Fla. 4th DCA 1980). Mr. Russell, a New York resident on a business trip to West Palm Beach, inspected a home owned by Mr. and Mrs. Hughes.......
-
Preve v. Albert
...she did not sign the contract sued upon, nor is there any competent evidence to bind her as a contracting party. Hughes v. Russell, 391 So.2d 256 (Fla. 4th DCA 1980). Accordingly, the judgment against Esperanza is not supported by the evidence. Nevertheless, the evidence is sufficient to su......
-
Jones v. Smith, 93-3678
...committed reversible error. In arriving at our determination to reverse on this point, we rely upon our holding in Hughes v. Russell, 391 So.2d 256 (Fla. 4th DCA 1980), wherein we held that a trial court may not base its decision upon an issue which had never previously been raised by the p......