Humphrys v. Jarrell

• Decision Date: 16 July 1958
• Docket Number: No. 76,76
• Citation: 104 So.2d 404
• Parties: NEIL L. HUMPHRYS and Mildred B. Humphrys, husband and wife, Appellants, v. Lee JARRELL and G. M. T. Jenks, Appellees.
• Court: Florida District Court of Appeals

Page 404

104 So.2d 404

NEIL L. HUMPHRYS and Mildred B. Humphrys, husband and wife, Appellants, v. Lee JARRELL and G. M. T. Jenks, Appellees.

No. 76.

District Court of Appeal of Florida, Second District.

July 16, 1958.

John T. Baron, Titusville, and Shepard & Dykes, Cocoa, for appellants.

Robert Godbey, Cocoa, and Crofton, Wilson & Brewer, Titusville, for appellees.

KANNER, Chief Judge.

This appeal has its source in a summary final decree entered by the chancellor in the trial court ordering as the result of a suit for specific performance that appellants as the sellers execute and deliver a conveyance of certain lands to appellees as the purchasers in compliance with their contract to sell and ordering appellees to pay the purchase price agreed upon.

A review of the case reveals that the record consists of the pleadings, the affidavits, the contract, a copy of a letter agreement, and a copy of two letters concerning an escrow arrangement. On December 20, 1955, appellants entered into a contract to sell to appellees the property involved in this controversy. The purchase price stipulated by the contract was $165 per acre, the quantity of land was 53.731 acres. The pertinent provisions of the contract are as follows:

'The purchase price is to be paid in the following manner, $500 at the time of the execution of this Agreement by the sellers. The balance or remainder to be paid within 30 days after the buyers receive compensation of certain land in Brevard County which is being sold to the United States Government; but in any event this Agreement shall expire January 1, 1957; The deferred payments shall bear interest at the rate of 6% per annum from the date of the execution of this instrument, which interest shall be payable semi-annually. * * *

'The sellers shall furnish to the buyers, upon demand, an Abstract of Title showing a good and merchantable title in the sellers. The purchasers shall have 30 days from the time such Abstract is furnished to examine the same by their attorney and should any defect of title be found, the sellers shall have 30 days from the time such defects are called to their attention to correct them.' (Emphasis supplied.)

The down payment was made; on June 19, 1956, and on January 6, 1957, respectively, interest payments were made.

In December of 1956, appellee Jarrell instructed his attorney to obtain the abstract of title and make an examination of it. The attorney made the request for the abstract in December, 1956, received and examined it, and on December 17, 1956, he reported to appellee Jarrell that in his opinion the title was not 'good and merchantable'. The appellants were not informed that it was the attorney's opinion that the title was unmarketable until sometime in the early part of January, 1957.

On January 11, 1957, appellants and appellee Jarrel entered into a letter agreement, the body of which reads as follows:

'This letter is concerning our oral conversation just concluded. In this conversation we discussed the title to the tract of land in Section 14, Township 24 S, Range 36 E; which land we have contracted to convey to you and the time for such conveyance has arrived, the time, terms and conditions of the transaction including the date of closing is more specifically set out in that certain agreement between us dated December 20, 1955, which agreement was executed by us and by you and by reference is made a part of this letter.

'The Abstract of Title showing the title to the described real property does not show a good marketable title and it is necessary that a suit to quiet this title be instituted and carried to a conclusion. It is therefore agreed in consideration of the above premises that you, Lee Jarrell, are to attend to the suit for quieting title which will be instituted and prosecuted by Robert Godbey, Attorney, as promptly as possible. Lee Jarrell to pay the costs and attorneys fees incident to quieting the title and we, the undersigned, hereby waive all interest and claims for interest on the purchase price remaining to be paid as of this date.'

The letter agreement was signed by Jarrell but not by Jenks, a party to the original agreement and a successful party in obtaining the decree for specific performance of the contract.

On March 11, 1957, appellants informed the attorney that, nothing having been done about the suit to quiet title, they were not 'waiting another day'. They then obtained the advice of another attorney who informed them that the title to the property was marketable. Appellants thereupon and because of the claimed delay refused to proceed with the sale.

On March 27, 1957, appellees entered suit for specific performance, and on April 20, 1957, an escrow arrangement was made by them for payment of the purchase price, contingent upon delivery of a good deed of conveyance by appellants.

From the time of the preparation of the contract, the contract being dated December 20, 1955, until March 11, 1957, the negotiations were handled through one attorney. He was the attorney for appellees and acted also for the appellants who had no other legal counsel to advise them until they had notified him that the deal was off. Appellants relied on the attorney who was representing the appellees and the appellants at the same time.

The foregoing recital or summary of facts is substantially without dispute. This is not so as to other phases of the negotiations and of the factual situation upon which appellants based their decision not to consummate the sale.

The appellant in their affidavit resisting the motion for summary decree declared that they postponed the termination of the contract because they relied on the statements of the attorney and on his opinion that the property bore no marketable title, and that the supplementary letter agreement was not written at their suggestion but at the suggestion of the appellee Jarrell in the offices of the attorney. Contrarily, the affidavit of the attorney sets forth that in his opinion there were 'matters that clouded the title'. By their answer and affidavit, appellants have created the issue of the marketability of the title, particularly as it relates to the letter agreement and the reason for its making and execution.

There is also some disagreement as to the extent and the characteristics of the negotiations between January 11, 1957, the date of the letter agreement's execution, and the time of appellants' announced intention not to complete the sale. Generally, in this respect, it can be said that appellants' affidavit reveals inaction with reference to the bringing of the suit to quiet title and further shows a deterioration of affairs as a result, which thereby induced appellants' refusal to go ahead with the contract. On the other hand, generally, the affidavits of the appellee Jarrell and of the attorney who handled the matter for the parties to the time of the breaking off indicate that diligence was being exercised toward the institution of the quiet title suit, and that appellants repudiated the contract without cause.

30 F.S.A. Rule 1.36 of the Florida Rules of civil Procedure, 1954, sets forth the provisions and prescribes the proceeding for summary judgment or decree:

1.36(a)

'For Claimant. A party seeking to recover upon a claim, counterclaim or cross-claim or to obtain a declaratory judgment or decree may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment or decree by the adverse party move with or without supporting affidavits for a summary judgment or decree in his favor upon all or any part thereof.'

1.36(c)

'Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment or decree sought shall be rendered forthwith if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law. * * *'

1.36(e)

'Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated herein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.'

Summary judgment or decree is permissible only where the pleadings, depositions, or admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the movant is entitled to judgment or decree as a matter of law. The burden of proof is upon the party moving for summary...