Perkins v. Simmons

• Decision Date: 19 October 1943
• Citation: 153 Fla. 595,15 So.2d 289
• Parties: PERKINS et al. v. SIMMONS.
• Court: Florida Supreme Court

15 So.2d 289

153 Fla. 595

PERKINS et al. v. SIMMONS.

Florida Supreme Court

October 19, 1943

Appeal from Circuit Court, Leon County; L. L. Fabisinski, judge.

Oven, Stanley &amp Oven and B. C. Stanley, all of Tallahassee, for appellants.

Ausley, Collins & Ausley, of Tallahassee, for appellee.

PER CURIAM.

This suit is the outgrowth of a verbal agreement to buy and sell a piece of real estate situated in Leon County, near the City of Tallahassee, Florida. The appellants (defendants below) Margaret C. Perkins and Emmie Flagg Perkins, owned or controlled the title to the real estate and by their broker represented to appellee (Plaintiff below) that the tract contained 235 acres, more or less. The appellee, with the broker, viewed or inspected the tract and thereafter the appellee offered the appellants' broker the sum of $65,000 for 235 acres. The broker, in behalf of his clients accepted the offer, when the appellee paid him the sum of $1,000, as a binder, when they transferred the item to their respective attorneys, with instructions to prepare a written option containing terms and conditions to be made satisfactory to the parties.

During the period counsel was engaged in working out the terms and conditions of the written option for examination and approval of the parties thereto, it developed that the appellants did not own or control and could not convey to the appellee the 235 acres but could convey 178 acres, but if designated streets and road were included, then 216 acres could be conveyed. This fact was then made known to the appellee, when he immediately rescinded and cancelled the verbal agreement and demanded the return of the $1,000 previously paid, and upon refusal of the appellants to return the money, a common law action was by him instituted in the Circuit Court of Leon County ultimately resulting in a verdict and judgment in his behalf when the appellants perfected their appeal here.

Counsel for appellants pose for adjudication here the question, viz: Where one has agreed to buy a tract of land that he had closely inspected on two occasions and knew that the statements of the vendors' agents as to the number of acres contained in that tract were based upon the acreage appearing on the tax assessment roll, such statements having been made in good faith, and where the agreed purchase price was not an equimultiple of th number of acres stated to have been contained in the tract, may the purchaser decline to consummate the sale and recover the binder given by him because the option later delivered to his attorneys described the acreage of the tract as being considerably less than that set forth in the statements of the vendors' agents?

Counsel for appellants contend that the deficiency in quantity of the land verbally contracted to be conveyed, consisting of only 19 acres if the roads and streets are included and 57 acres if the roads and streets are excluded, as reflected by the record, is not a material condition to the transaction; that the appellee viewed or inspected the tract, observed the boundaries, roads and streets within the tract, was granted full opportunity to see and observe the good and bad features of the tract, and for these several reasons can not recover the $1,000 binder paid, although the agent admitted that the appellants had assessed and paid taxes on the tract consisting of 235 acres. On the other hand, the appellee contended that the number of acres--represented as comprising 235--was a material condition to the trade or transaction and when advised of the above shortage, he immediately rescinded and cancelled the verbal agreement under which he paid the $1,000. The right of the plaintiff below to maintain this common law action was not challenged. See Hilliard v. Futch, 99 Fla. 654, 127 So. 341; Cox v. Grose, 97 Fla. 848, 122 So. 513.

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