Mortgage Inv. Foundation, Inc. v. Eller

• Citation: 93 So.2d 868
• Parties: MORTGAGE INVESTMENT FOUNDATION, Inc., a Florida corporation, Appellant, v. J. H. ELLER and Mattie Eller, and Daniel J. Kindel, Appellees.
• Decision Date: 27 March 1957
• Court: United States State Supreme Court of Florida

Page 868

93 So.2d 868

MORTGAGE INVESTMENT FOUNDATION, Inc., a Florida corporation, Appellant, v. J. H. ELLER and Mattie Eller, and Daniel J. Kindel, Appellees.

Supreme Court of Florida, Special Division A.

March 27, 1957.

Rehearing Denied May 9, 1957.

Fulton, Sullivan & Burns and Phillips & Hathaway, West Palm Beach, for appellant.

Robert F. Griffith, Jr., Boynton Beach, for appellees.

HOBSON, Justice.

One Kindel, as plaintiff, brought suit against appellee J. H. Eller seeking specific performance of an alleged agreement to sell and convey certain land. Appellant, Mortgage Investment Foundation, Inc., intervened in the suit claiming under an agreement whereby J. H. Eller and his wife were to convey the same realty to the appellant.

The chancellor heard testimony and dismissed the plaintiff Kindel's case, finding that the agreement under which he claimed was invalid. The chancellor went on, however, to deny specific performance of the admittedly valid contract under which the intervener claimed because, to quote from the chancellor's memorandum decision, the defendant, J. H. Eller, was

'* * * in no position to specifically perform the contract with the Mortgage Investment Foundation, Inc., without subjecting himself to the necessity for awaiting the outcome of the Kindel litigation before he shall be privileged under the contract to receive any part of the purchase price. There is no telling how long that litigation will be pending if an appeal from this Court's decision made today should be taken, and Mortgage Investment Foundation, Inc., hasn't evidenced any willingness to pay $44,000 for such interest as the defendant can deliver now, but says that if the title is insured, if it shall be insured, and if the defendant, with Mortgage Investment Foundation, Inc.'s assistance, shall prevail in the Kindel litigation, then and only then will it pay the purchase price.'

The Kindel litgation in fact terminated with the chancellor's final decree, no appeal from which was taken by the plaintiff Kindel. Only the Mortgage Investment Foundation Inc., appealed, contending first that it was error to deny specific performance under the circumstances of the case, and second that at the least it was error to dismiss appellant's suit with prejudice and without preserving its remedies at law.

In connection with the second point it raises, appellant contends that where the primary relief of specific performance to a buyer cannot be decreed, equity has no jurisdiction to grant damages for breach of contract by the seller, Lewis v. Yale, 4 Fla. 418, but that the failure in equity does not bar the buyer's remedy at law, Murphy v. Hohne, 73 Fla. 803, 74 So. 973, L.R.A. 1917F, 594, and in such a situation a dismissal should be without prejudice to the right of the complainant to pursue his remedies at law, Levitt v. Axelson, 102 Fla. 233, 135 So. 553. We agree that the minimum relief which must be accorded appellant is the preservation of his rights at law.

This leaves us with the principal question of whether or not the chancellor committed reversible error in refusing specifically to enforce a valid contract to convey land under the circumstances of this case. Specific performance is a remedy which lies within the discretion of the chancellor, but this discretion is controlled by well-established doctrines of...