Jones v. Watkins

• Decision Date: 18 April 1932
• Citation: 105 Fla. 25,140 So. 920
• Parties: JONES et ux. v. WATKINS.
• Court: Florida Supreme Court

140 So. 920

105 Fla. 25

JONES et ux. v. WATKINS.

Florida Supreme Court, Division A.

April 18, 1932

Suit by J. C. Watkins against Henry F. Jones and wife, in which defendants filed a counterclaim.From a decree for complainant, defendants appeal.

Affirmed.Appeal from Circuit Court, St. Lucie CountyElwyn Thomas, judge.

COUNSEL

Fee &amp Liddon, of Ft. Pierce, for appellants.

Sumner & Sumner, of Ft. Pierce, for appellee.

OPINION

BUFORD C.J.

This was a suit to foreclose a mortgage made, executed, and delivered to secure the balance of the purchase price of the property described in the mortgage.

There was a second amended answer alleging that the execution of the notes and mortgage was procured by fraud and misrepresentations of fact by plaintiff's agent.The answer embraced a counterclaim on account of moneys paid to the plaintiff as a result of the fraud, prayed for an accounting and a decree requiring the return of the money paid, for a lien on the property to enforce such decree, and for rescission and cancellation of the mortgage.

There was demurrer to the third paragraph of the second amended answer, which paragraph alleged the fraudulent misrepresentations and that the defendant acted on the truth and good faith of such representations.There was also demurrer to the part of the answer setting up counterclaim.Demurrer to the third paragraph of the amended answer was overruled.The demurrer to that part of the answer setting up counterclaim was sustained.The latter ruling was error.Hendricks v. Stark,99 Fla. 277, 126 So. 293 294.Subsequent developments, however, rendered that error harmless.Under the allegations and proof the defendant would have been entitled to all the relief prayed on authority of Hendricks v. Stark, supra;Holgate v. Jones,94 Fla 198, 113 So. 714, andSun City Holding Co. v. Schoenfeld,97 Fla. 777, 122 So. 252, had he acted promptly and before ratification of the contract by subsequent acts.

The record shows that the notes and mortgage were executed March 26, 1925, and that the defendant, after a reasonable time had elapsed to put him on notice that the alleged misrepresentations if made were false and untrue, ratified the notes and mortgage by making payments thereon on September 26, 1926, on October 7, 1928, on November 10, 1928, and on November 29, 1928.

It appears, therefore, that the decree must be affirmed on authority of the opinion and judgment in the case of Hendricks v. Stark, supra, wherein this court held:

'Where a party, with knowledge of facts entitling him to rescission of a contract or conveyance, afterward, without fraud or duress, ratifies the

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