Mortimer Co. v. Fridstein

• Citation: 101 Fla. 33,133 So. 566
• Parties: MORTIMER CO. v. FRIDSTEIN et al.
• Decision Date: 01 April 1931
• Court: United States State Supreme Court of Florida

133 So. 566

101 Fla. 33

MORTIMER CO. v. FRIDSTEIN et al.

Florida Supreme Court, Division B.

April 1, 1931

Error to Circuit Court, St. Johns County; George Wm. Jackson Judge.

Action by the Mortimer Company, a corporation, against Samuel H Fridstein and another. To review a judgment for the defendant, plaintiff brings error.

Affirmed.

Syllabus by the Court.

SYLLABUS

Where a demurrer does not comply with section 2641, R. G. S., section 4307 C. G. L., in that it does not specifically set out the substantial matters of law intended to be argued under it such failure will not be ground of reversal of a ruling sustaining such demurrer, if it be found that it was properly sustained, but if overruled such defective demurrer may not furnish a predicate for successfully maintaining an assignment of error on it in an appellate court because it was overruled.

Where a contract provides for the sale of land the title to a portion of which is shown by the contract not to be in the vendor but the vendor agrees to furnish title satisfactory to the vendee, in lieu of which there shall be an abatement in the total purchase price or at the option of the vendee the contract may be rescinded, a declaration in a suit on such contract by the vendee to recover a part payment made to the vendor on the purchase price, because the title was not satisfactory to vendee, should affirmatively show that vendee required satisfactory title in lieu of the abatement in the purchase price which the contract provided for in such contingency.

Where there is provision in a contract for the sale of land which provides for an abatement in the purchase price in the event vendor fails to furnish satisfactory title, or that at the option of the vendee the entire contract may be rescinded and all payments made returned, the option to terminate for unsatisfactory title involves an obligation on the vendee's part to affirmatively decline the abatement in price and insist on vendee's obligation to furnish satisfactory title so that the contract could be rescinded pursuant to the express option given to the vendee to do so in the event vendor did not comply with the demand for satisfactory title.

It is the duty of plaintiff in an action at law to clearly and definitely allege in his declaration sufficient facts to show a breach on the part of defendant, where the suit is based on an express contract.

Where a declaration wholly fails to state a cause of action, a demurrer thereto is properly sustained.

COUNSEL

George W. Bassett, of St. Augustine, for plaintiff in error.

Mickler & Mickler, of St. Augustine, for defendants in error.

OPINION

DAVIS J.

In this case the court below sustained a demurrer to a common-law declaration seeking recovery of certain moneys which are alleged to have been paid to defendant as earnest money under a contract for the purchase and sale of real estate.

Judgment on the demurrer was entered in favor of defendant as to the two special counts of the declaration which are to be considered on this writ of error.

While the demurrer which was sustained does not comply with section 2641, Rev. Gen. Stats., section 4307, C. G. L., in that it does not specifically set out the substantial matters of law intended to be argued under it, and in consequence of such failure might not furnish a predicate for successfully maintaining an assignment of error on it in an appellate court had the court overruled such demurrer (Benedict Pineapple Co. v. A. C. L. R. Co., 55 Fla. 514, 46 So. 732, 20 L. R. A. (N. S.) 92; State ex rel. Kittel v. Jennings, 47 Fla. 307, 35 So. 986; Heathcote v. Fairbanks, Morse & Co., 60 Fla. 97, 53 So. 950), such deficiency in the form of the demurrer cannot serve as a basis for reversing the judgment if, as a matter of law, the declaration states no cause of action, because where a judgment is rendered for defendant on a substantially defective declaration, such judgment should not be held to be so erroneous as to require its reversal by an appellate court. Hall & Pope v. Northern & Southern Co., 55 Fla. 242, 46 So. 178.

Assuming that the contract sued on is governed by what was held by this...