Miller v. Murray

• Decision Date: 11 December 1953
• Citation: 68 So.2d 594
• Parties: MILLER v. MURRAY et al.
• Court: Florida Supreme Court

Page 594

68 So.2d 594

MILLER v. MURRAY et al.

Supreme Court of Florida, Special Division A.

Dec. 11, 1953.

Marco Loffredo, Miami, for appellant.

Daniel E. Murray, Miami, for appellees.

SEBRING, Justice.

This is an appeal by the plaintiff below from a decree denying specific performance of an alleged oral contract to convey real estate.

According to the record, Doris Miller lived as a tenant in a 'shack' on the rear of a lot owned by her mother, a Mrs. Hodges, in Dade County, Florida. On the front of the lot was another house which had been occupied, from time to time, by various members of the Hodges family. At one period, however, it remained vacant for several months and during this time Mrs. Hodges attempted to sell it. While trying to find a purchaser, Mrs. Hodges allowed Doris Miller to move into the house, and thereafter Doris Miller made payments of $50 a month to her mother, until the latter died approximately one year later.

After the death of the mother, Doris Miller brought the present suit for specific performance alleging in her complaint that the mother had entered into an oral contract to sell her the property for $5,500; the down payment thereon to be the sum of $600 that the daughter had theretofore lent the mother, and the balance to be paid at the rate of $50 each month without interest.

Answers were filed by the defendants denying the material allegations of the complaint and evidence was submitted before a special master. At the conclusion of the trial the special master, after acknowledging in his report 'the highly contradictory' nature of the evidence submitted, concluded that the testimony supported 'the finding of an oral agreement between the deceased and complainant' and 'the finding that the complainant loaned the deceased * * * the sum of $600, and that the oral agreement provided this $600 was to be used as the down payment toward the total price of $5,500 * * *.' Based on these and other findings the master found the equities to be with the plaintiff and recommended the entry of a decree in favor of the plaintiff as prayed.

Exceptions to the report were taken by the defendants and sustained by the chancellor, who overruled the master's conclusion in a decree containing the following findings: 'the Court finds that the Plaintiff has failed to prove by more than a preponderance of evidence, as required in such circumstances, all of the essentials necessary to be proved to establish such part performance as will take the case out of the Statute of Frauds, and to invoke the interference of a court of equity in the Plaintiff's behalf to require specific performance. Neither is it made to appear that the Plaintiff cannot be returned to her former position or damages fixed and awarded which would be full compensation or that it would be a fraud upon the Plaintiff if the agreement she asserts were not carried out.'

On this appeal some objection is made by the plaintiff to the rule of evidence applied by the chancellor. We find no valid basis for the objection. In this jurisdiction the rule is settled beyond question 'that in a suit for specific performance of an alleged contract for the sale of real estate the plaintiff must do more than merely prove his case by a preponderance of the evidence * * * he must prove the contract as alleged in his complaint by competent and satisfactory proof which must be clear, definite and certain. See Maloy v. Boyett, 53 Fla. 956, 43 So. 243; Williams v. Bailey, 69 Fla. 225, 67 So. 877; Rundel v. Gordon, 92 Fla. 1110, 111 So. 386; Alexander v. Bess, 123 Fla. 713, 167 So. 533; White v. Cohn, 137 Fla. 501, 188 So. 581.' Miller v. Gardner, 144 Fla. 339, 198 So. 21, 23.

The governing principles by which part performance may remove an oral contract for the sale of land from the effect of the Statute of Frauds are also well settled. In addition to establishing the fact that an oral contract for sale was made, proof must be submitted as to the following: payment of all or part of the consideration, whether it be in money or in services; possession by the alleged vendee; and the making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor--or, in the absence of improvements, the proof of such facts as would make the transaction a fraud upon the purchaser if it were not enforced. Battle v. Butler, 138 Fla. 392, 189 So. 846...