Jackson v. Holmes

• Court: Florida District Court of Appeals
• Writing for the Court: GRIMES; BOARDMAN; McNULTY; McNULTY
• Citation: Jackson v. Holmes, 307 So.2d 470 (Fla. App. 1975)
• Decision Date: 05 February 1975
• Docket Number: No. 74--162,74--162
• Parties: Irvin JACKSON and Emile Jackson, his wife, Appellants, v. Wilson L. HOLMES and Louise O. Holmes, his wife, Appellees.

Page 470

307 So.2d 470

Irvin JACKSON and Emile Jackson, his wife, Appellants, v. Wilson L. HOLMES and Louise O. Holmes, his wife, Appellees.

No. 74--162.

District Court of Appeal of Florida, Second District.

Feb. 5, 1975.

Rehearing Denied Feb. 26, 1975.

Frank McClung, Brooksville, for appellants.

Joseph E. Johnston, Jr., Brooksville, for appellees.

GRIMES, Judge.

On November 8, 1972, appellees (buyers) and appellants (sellers) entered into a contract for the sale of a 42-acre tract of land upon which the sellers lived. The form of the contract was the standard printed form of the National Association of Real Estate Boards which provided that if the buyers failed 'to perform the contract within the time herein specified, time being of the essence of the agreement,' the deposit would be disposed of as specified therein. In order to have enough money to pay the purchase price in cash, it was understood that prior to closing the buyers would need to obtain a loan secured by mortgage on the property. Among several written interlineations in the contract were the words 'seller to be furnished bank loan certification on or before November 24th.' The contract further specified that the sale should take place 'on or before 90 days.'

While the contract said nothing about it, the buyers knew that in order to have access to the property it was necessary to cross the right-of-way of the Seaboard Coast Line. At the time the contract was signed the sellers showed the buyers a letter from Seaboard consenting to the construction of a private crossing at a cost of $832.

Upon the execution of the contract, the buyers immediately applied for a loan at First Federal Savings & Loan Association of Pasco County. Because of the question of access, the loan certification was not forthcoming by November 24, 1972. The following day the seller, Mr. Jackson, advised his broker that due to the failure to receive the loan certification he considered the contract cancelled. He added that he had now secured another purchaser who was willing to pay a higher price. On November 28, 1972, sellers' lawyer wrote to the buyers stating that if the bank loan certification was not furnished by December 1, 1972 the contract would be cancelled and the deposit returned. On December 12, 1972, the buyers' lawyers sent Seaboard a check for $832 to contruct the railroad crossing. The buyers' loan application was approved on December 14, 1972 and the certificate thereon was issued on December 20, 1972. Upon refusal of the sellers to proceed with the closing, the buyers brought suit for specific performance.

Following the taking of testimony, the court entered a judgment of specific performance. In the judgment, the court made the following findings:

'4. The Defendant, Irvin Jackson, admitted in his testimony that the sole purpose of the item 'Seller to be furnished Bank Loan Certification on or before November 24,' was only to assure Defendants that Plaintiffs had the ability to close the transaction within the time provided within the contract, to-wit: February 2, 1973, and that proof of such ability was available to Defendant prior to time fixed in the agreement and there was no need for Defendant to have any more information than existed and which was available.

5. There was no injury to the Defendants in failing to have the technical loan certification on the date specified and no hardship of any type resulted therefrom to the Defendants.

On appeal, the sellers argue that where a contract contains a 'time is of the essence' provision, this provision is entitled the same treatment in equity as it is in law. To that extent, we agree, absent the existence of a waiver or recognized equitable grounds such as fraud. Realty Securities Corp. v. Johnson, 1927, 93 Fla. 46, 111 So. 532. However, where the failure to perform is not substantial, the non-performing party should not be...