Mann v. Thompson

• Decision Date: 27 February 1958
• Docket Number: No. A-167,A-167
• Citation: 100 So.2d 634
• Parties: Carl MANN and Marion Mann, Appellants, v. Mary K. THOMPSON et al., Appellees.
• Court: Florida District Court of Appeals

Page 634

100 So.2d 634

Carl MANN and Marion Mann, Appellants, v. Mary K. THOMPSON et al., Appellees.

No. A-167.

District Court of Appeal of Florida, First District.

Feb. 27, 1958.

Rehearing Denied March 13, 1958.

Mabry, Reaves, Carlton, Fields & Ward, Tampa, for appellants.

Brannon, Brown, Smith & Norris, Lake City, for appellees.

Scruggs, Carmichael & Avera, Gainesville, for appellee Nat. Turpentine & Pulpwood Corp.

Caldwell, Pacetti, Robinson & Foster, West Palm Beach, for appellees Charles Boynton and Erle Boynton.

WIGGINTON, Judge.

This is an appeal from a final decree dismissing a complaint for specific performance of a lease and ordering the plaintiff-lessee to vacate the disputed premises.

The cause initially arose out of a series of negotiations beginning in 1953, and extending over a period of several years.

On May 15, 1953, the appellant, Carl Mann, entered upon a written agreement with Prudential Timber Company, a corporation represented in the transaction by its president and principal stockholder, A. C. Thompson, whereby Mann leased some 6500 acres of land in Levy County from the corporation at a stated annual amount per acre. In addition to providing for cancellation for certain specific reasons such as flagrant abuse of the land by the lessee, the lease, which was for a period of five years with option for renewal for a like term, contained a clause providing that:

'9. In case of sale of all, or part, of said land by Lessor, or in the event any of said land is required by Lessor for converting to pasture or for any other reason, this lease may be canceled, either in whole or in part, by Lessor, upon it's paying Lessee a proportionate amount of rental received for said land to be so released for the unexpired portion of the period for which rental had been paid plus a like proportionate amount of any monies which Lessor might then have on hand and which had been paid in advance by Lessee as above set forth. No such release shall become operative before six (6) months notice in writing is given to Lessee by Lessor * * *' (Emphasis supplied.)

Subsequent to May 15, 1953, and around January 1955, Thompson conceived the idea of entering the cattle business himself. To effectuate his plan he commenced negotiations with Mann and his son for the purpose of consummating a new agreement for the lease of some 35,000 acres, including the 6,500 acres covered by the 1953 lease. The new lease agreement contemplated that the Manns would stock the increased acreage with as many cattle as it would reasonably support, and that instead of a cash rental, Thompson would receive an agreed percentage of the annual calf crop. Those calves received by Thompson as rental were to be treated as his separate enterprise.

Following serveral conferences between the parties, Thompson wrote a letter to Mann on March 7, 1955, relative to the terms of '* * * the cattle lease to be entered into * * *' and requesting Mann's suggestions as to the 'general terms' of the proposed lease. Thompson concluded this letter by saying that on receiving Mann's suggestions 'I will then write up the terms in a regular lease.' Upon receipt of this letter Mann went into immediate possession of the land contemplated by the negotiations and commenced making certain improvements thereto. All this was done with Thompson's knowledge and apparent consent. Later, on April 12, 1955, Mann replied in writing to Thompson's letter and expressed agreement with the general terms of Thompson's proposal. Mann further stated: 'There are only a few minor details which should be changed or added to. I will try to do this in my own way of writing. In the meantime * * * I have asked * * * a local attorney here * * * to draw up a rough draft like we talked about * * *' No further steps were taken by either party toward reaching a final agreement as to the exact terms and conditions to be incorporated in the final draft of the lease agreement. On or about May 26, 1955, Thompson was hospitalized because of a critical illness from which he ultimately expired on the following July 17th.

On February 10, 1956, Mann was notified in writing of the cancellation of the above-mentioned lease of May 15, 1953, by trustees of Prudential Timber Co., Inc. This notice was purportedly given under authority of Section 9 of the lease, and for the purpose of effecting delivery of possession of the subject lands to the National Turpentine and Pulpwood Corporation in accordance with a long term lease negotiated with that Corporation during January 1956. Mann was commanded to vacate the land not later than September 1, 1956. This notice was followed by several unsuccessful attempts by the Manns to secure recognition of what they insisted was a complete and binding lease of the 35,000 acres in question.

On July 19, 1956, the Manns filed a complaint in the Circuit Court of Levy County alleging that their negotiations with Thompson who was acting for Prudential Timber Co., together with the actions of the parties, resulted in a firm and binding lease of the entire 35,000 acres in accordance with the 1955 exchange of letters referred to above. The complaint prayed for a decree of specific performance and that the defendants be enjoined from any interference with the lease agreement. The defendants answered, denying the existence of a lease as a result of the 1955 negotiations, and alleging a lawful cancellation of the 1953 lease by notice given February 10, 1956, to vacate by September 1, 1956. This, for the purpose of fulfilling the lease agreement with National Turpentine and Pulpwood Corporation, who was also made a party defendant in the Manns' action.

Although copious testimony and evidence concerning the alleged 1955 lease was adduced by the parties at trial, we do not consider that any useful purpose would be served by a recital thereof in this opinion. It suffices to say there were numerous sharp conflicts on material points, and the evidence was such as to give considerable credence to the allegations of each party. The Chancellor conceived the principal issue to be whether the intent of Thompson was to consummate the alleged lease agreement before it was fully expressed and executed in a formal written instrument. It was his conclusion that such an intent was not shown by clear and convincing evidence; and that the alleged cancellation of the 1953 lease was valid. Having so concluded, the Chancellor entered his decree dismissing the cause and ordering surrender of the property to defendants. Both rulings are here assigned as error.

Specific performance of a contract will not be enforced unless the agreement is clearly established. ¹ To enforce performance of a parol contract to lease land, the agreement must be established by more than a mere preponderance of the evidence. ² Even where the terms of the contract are clear, certain, and unambiguous, specific performance is not a matter of right, but rests in the sound discretion of the court to be determined from all the facts and circumstances. ³ And, while the evidence may well be such that it is subject to more than one interpretation, a reversal is not justified in the absence of manifest error clearly demonstrated. ⁴

From our review of the evidence we are convinced that the Chancellor correctly conceived the controlling issue relative to the alleged 1955 lease agreement. The kernel of this issue necessarily concerns the existence or non-existence of a valid and binding contract. So long as any essential matters remain open for further consideration, there is no completed contract. ⁵ In order to create a contract it is essential that there be reciprocal assent to a certain and definite proposition. ⁶ When the parties intend that their negotiations be reduced to a formal writing, there is no binding contract until the writing is executed. ⁷ The Chancellor who had the exclusive privilege of viewing the witnesses found no intention on the part...