John Ringling Estates, Inc. v. White

• Citation: 141 So. 884,105 Fla. 581
• Parties: JOHN RINGLING ESTATES, Inc. v. WHITE et al.
• Decision Date: 28 May 1932
• Court: United States State Supreme Court of Florida

141 So. 884

105 Fla. 581

JOHN RINGLING ESTATES, Inc. v. WHITE et al.

Florida Supreme Court

May 28, 1932

Commissioners' Decision.

Suit by Samuel White and another against the John Ringling Estates Inc. From an order overruling a demurrer to the bill of complaint, defendant appeals.

Reversed and remanded, with directions. Appeal from Circuit Court, Sarasota County; Paul C. albritton, judge.

COUNSEL

Williams & Dart, of Sarasota, for appellant.

Graham & McKaig and Stephen B. Jennings, all of Sarasota, for appellees.

OPINION

DAVIS C.

The appellees as assignee of one Linton E. Allen, a purchaser instituted suit for the cancellation of a contract for the sale of certain real estate, and the recovery of the initial payment made by the purchaser. The complainants, appellees here, in their bill pray that a decree be entered requiring defendant pay amount due complainants, that a lien be declared upon the land in question, and that, upon failure of defendant to pay the amount ascertained to be due complainants, the land be sold to satisfy the decree.

The contract is dated April 20, 1925, and the bill shows that the defendant, the appellant here, was to furnish an abstract of title to the property, brought down to date, and, should the purchaser or his attorney notify the defendant within fifteen days after receipt of abstract, and insist upon any valid objection to the title which could not be removed within a reasonable time, not to exceed four months, then and in such event the purchaser might at his option, declare the agreement terminated, whereupon the initial payment should be returned. It is also alleged, in substance, that, upon receipt of the abstract of title, an examination of same was made by attorneys for the purchaser, which resulted in the purchaser notifying the defendant in writing on or before February 20, 1926, that he objected to the title, as shown by the abstract, in that it appeared that one Gertrude G. Higel and her husband, Harry L. Higel, had on April 15, 1911, given to one P. D. Lacey, an 'option to buy the following described real estate to-wit: property known as St. Armand's Key, containing 120 acres, more or less, etc.,' and that the abstract failed to show that the option had been disposed of; that later the purchaser again notified the defendant in writing that a valid objection existed to said title and that he desired the return of the initial payment, whereupon, the defendant informed the purchaser that all of the objections to the title were cleared up in a reasonable time, that on August 31, 1926, the purchaser informed defendant that all he wanted was a merchantable abstract of title and that, as it could not be furnished immediately, he would like to have the return of his money; that on September 7, 1926, the defendant requested that further action in the matter be deferred, and later, on December 14, 1926, defendant wrote to the purchaser to the effect that the several points raised by purchaser's attorney had been cleared up and that the defendant could see nothing to hinder it from giving a good clear, merchantable title to the property; that on December 23, 1926, the purchaser, by his attorneys, notified the defendant by letter 'as we have heretofore done on August 7, 1926, December 15, 1926, that we declare the agreement terminated and of no effect, and demand the return' of the initial payment; that on March 8, 1927, the defendant offered to substitute other lots for the lots contracted for, upon terms stated in a letter of that date, which were never accepted by the purchaser or his assignees, and that complainants subsequently continued to demand the return of said initial payment; that the defendant has never delivered to the purchaser or to the complainants an abstract showing a good and merchantable title to the property contracted for. It is not shown by the amended bill when the abstract of title was received by the purchaser.

Demurrer was interposed to the bill of complaint, which was overruled by the court, and from this order the defendant took an appeal to this court.

There are a number of errors assigned, but all of them may be considered under one that questions the propriety of the order overruling the demurrer.

Upon breach of the contract, if it was breached, by the vendor complainants had the right to affirm the contract and sue the vendor for damages, or to disaffirm the contract and bring an action at law to recover back the payment that had been made, but they were not confined to these remedies. They...