Orlando Realty Board Bldg. Corp. v. Hilpert

• Decision Date: 02 May 1927
• Citation: 93 Fla. 954,113 So. 100
• Parties: ORLANDO REALTY BOARD BLDG. CORPORATION v. HILPERT et al.
• Court: Florida Supreme Court

113 So. 100

93 Fla. 954

ORLANDO REALTY BOARD BLDG. CORPORATION v. HILPERT et al.

Florida Supreme Court, Division A.

May 2, 1927

Suit by Anna I. Hilpert and others against the Orlando Realty Board Building Corporation to cancel an option for the sale of land. From a decree canceling the option and refusing defendant specific performance on a cross-complaint defendant appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

Granting specific performance is discretionary with court. The enforcement of a specific execution of a contract is not a matter of right in either party, but it is a matter of sound discretion in the court and should be granted only in cases where such decree would be strictly equitable.

If performance by both parties simultaneously is required payment of purchase price is not necessary before suing for specific performance; purchaser suing for specific performance of contract requiring payment on delivery of conveyance should allege and prove readiness, willingness and ability before or at proper date if time is of essence and notice to vendor. In a contract for the sale of lands where the conditions to be performed by both parties are to be simultaneously performed, as where the payment of the purchase price is to be made upon delivery of a conveyance actual payment of the purchase price is not necessary to the vendee's relief. The vendee, however, seeking specific enforcement, should allege and prove that he was ready, willing, and able to comply with his part of the agreement before or on the date agreed upon for performance, if time is of the essence of the agreement, and that he so notified the vendor.

Refusal of specific performance of land sale contract will not be disturbed on appeal except on showing of error. The discretion of the chancellor in refusing the specific performance of a contract for the sale of lands will not be disturbed on appeal unless it is clearly made to appear that the order was erroneous.

One desiring to exercise option to buy land must notify vendor within time specified on terms named. Where one holds an option based on a valid consideration to purchase real estate and desires to exercise the option to buy, he must definitely accept the proposition by notifying the vendor of such decision within the time specified on the terms named.

Definitely accepted option to buy land becomes mutually binding on terms contained therein. When an option to buy lands is definitely accepted, it ceases to be an option and ripens into a mutually binding and enforceable contract the terms of which are identical with those contained in the option.

Purchaser accepting option to purchase lot of 50-foot front or fractional part thereof over 30 feet, should designate particular part he desires, unless he desires all. Where an option is given to puchase a lot of land 50 feet front by 100 feet in depth, beginning at a certain corner, 'or any fractional part of said 50 feet over and above 30 feet,' at a certain price per front foot, the option to be exercised on or before a certain date, the vendee in accepting the proposition should designate on or before the date fixed for the expiration of the option the particular part of the land he desires to buy if he intends not to take the entire 50 feet fronting on the street.

Written instrument describing land so uncertain that particular land intended cannot be determined will not be specifically enforced; option for purchase of 30 feet or more of frontage of 50-foot lot, accepted without designating part desired, held not specifically enforceable. Where the language of an instrument in writing descriptive of land to be sold is so uncertain that it cannot be said with reasonable certainty that a particular portion or part of the land was intended to be embraced in the description, it is too vague to be specifically enforced.

Appeal from Circuit Court, Orange County; Frank A. Smith, judge.

COUNSEL

Dickinson & Dickinson and Giles & Gurney, all of Orlando, for appellant.

Massey, Warlow & Carpenter, of Orlando, for appellees.

OPINION

ELLIS C.J.

This is an appeal from a decree canceling an option for the sale of land and refusing the appellant, who was cross-complainant below, the relief of specific performance.

It is well settled that the enforcement of a specific execution of a contract is not a matter of right in either party, but that it is a matter of sound discretion in the court and should be granted only in cases where such decree would be strictly equitable, and that where a party to a contract for the purchase of real estate has in good faith offered to fully perform his part of the contract according to the terms of the agreement, as the same appears on the face thereof, and the vendor fails and refuses to perform those things required of him under the terms of the agreement, then the vendee is entitled in equity and good conscience to specific enforcement of the contract. The statement of the rule is not as full as it might be. There is the qualification that when the conditions to be performed by both parties are to be simultaneously performed as where the payment of money, the purchase price, or a substantial part of it is to be made upon the delivery of a conveyance or bond for title. actual payment of the purchase price by the vendee is not necessary to his relief. In such case the vendee seeking specific enforcement should allege and prove that he was ready, willing, and able to comply with his part of the agreement on or before the date agreed upon for performance, if time is made of the essence, or within a reasonable time if it is not, and that he so notified the vendor. That is what a tender means in such case. Knox v. Spratt, 23 Fla. 64, 6 So. 924; Rose v. Henderson, 63 Fla. 564, 59 So. 138.

It is also true that the discretion of a chancellor in refusing the specific performance of a contract for the sale of real estate will not be disturbed on appeal unless it is clearly made to appear that the order of the chancellor is erroneous. Toomer v. Chancey (Fla.) 109 So. 641.

There is also another principle which is involved in this case. It is that where one holds an option, based upon a valid consideration, to purchase real property, and desires to exercise his option to buy, he must definitely accept the proposition, decide to exercise his option to purchase, by notifying the vendor of such decision within the time specified on the terms named. When that is done with due and proper formality the option becomes merged into a contract for the sale of lands mutually binding, and may be enforced in equity if its terms are sufficiently definite as to description of the land and other important requirements. See 25 R. C. L. 236; Rude v. Levy, 43 Colo. 482, 96 P. 560, 24 L. R. A. (N. S.) 91, 127 Am. St. Rep. 123.

When the option is accepted it ceases to be an option and has ripened into a mutually binding and mutually enforceable contract, the terms of which are identical with those contained in the option, because the acceptance or exercise of the option to buy must be strictly in conformity with the offer, neither falling within nor going beyond the terms proposed, but exactly meeting them at all points and closing them just as they stand. 25 R. C. L. 237. When, therefore such a contract is sought to be specifically enforced the question may properly arise whether the description of the land proposed to be...