Rutig v. Lake Jem Land Co.

• Decision Date: 12 January 1945
• Citation: 20 So.2d 497,155 Fla. 420
• Parties: BUTIG et al. v. LAKE JEM LAND CO.
• Court: Florida Supreme Court

20 So.2d 497

155 Fla. 420

BUTIG et al. v. LAKE JEM LAND CO.

Florida Supreme Court, Division B

January 12, 1945

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

Giles J Patterson, of Jacksonville, and Walter Warren, of Leesburg for appellants.

Andrews, Lavin & Patterson and Charles O. Andrews, Jr., all of Orlando, for appellee.

SEBRING, Justice.

On consideration of petition for rehearing we are impelled to modify our opinion filed here on December 19, 1944. Therefore our said opinion and judgment thereon is now vacated and withdrawn and in lieu thereof the following opinion and judgment is adopted and filed. Otherwise the petition for rehearing is denied.

The appellants brought suit against the appellee in the court below to recover damages for the alleged breaches of a written lease and of an oral contract to perform certain services for the plaintiffs. Demurrer was sustained to the declaration. The plaintiffs declined to amend the declaration, and final judgment was entered in favor of the defendant. This appeal is from the judgment.

The declaration is in three counts. The first count declares upon the written lease and the subsequent oral contract; the second declares upon the written lease alone; the third declares only upon the oral agreement. Each count claims $50,000 damages. For sake of clarity we shall confine ourselves only to the second and third counts, for in combination they contain all essential allegations appearing in the first count.

The substance of the second count is that defendant corporation leased 80 acres of land to plaintiffs for a one-year term from July 1 1943 to be used by plaintiffs 'exclusively for the production of agricultural commodities'; the plaintiffs obligating themselves to begin cultivation of the lands within thirty days after execution of the lease, under penalty of forfeiture for failure so to do. The defendant corporation by its lease covenanted 'to provide ingress and egress to the property leased' and 'to grade a road along the main canal for that purpose'; the lessees agreeing not to trespass upon other lands. The property was leased by plaintiffs for the purpose of planting cabbages thereon on or about September 1, 1943, of which purpose defendant had knowledge. Defendant lessor failed to provide a means of ingress and egress until about October 9, 1943, and as a result plaintiffs were prevented from getting on any of the lands until said date. On that date plaintiffs planted 40 acres of the leased lands in cabbages. Plaintiffs did not plant the remaining 40 acres because the breach of covenant by defendant 'caused a further delay of such length of time that it was utterly unsafe to plant cabbage upon the other half of the leased property at such late season because of cold weather.' The cabbages that were planted came up and made a good stand. On November 10, 1943, the cabbage plants, being young and tender, were killed by a freeze. Had plaintiffs been able to plant the entire 80 acres in cabbages on or about September 1 as they had planned, the plants would have been hardy enough to have withstood the freeze which came on November 10, and would have produced a large tonnage of marketable cabbages which plaintiffs could have sold at a profit. Damages are claimed for the breach of covenant.

The third count sets out the lease described in the second count and alleges that on July 7, 1943, after its execution, the parties entered into an oral contract whereby the defendant agreed for a valuable consideration to mole drain and plow the 80 acres of land covered by the lease, and have the property ready to the plaintiffs for planting cabbages on September 1, 1943. The mole draining and plowing was not completed at the time agreed. On October 9, 1943, only one-half of the lands had been mole drained and plowed. Plaintiffs planted cabbages on this 40 acres. Because defendant did not have all of the land prepared until after October 9, 1943, there was caused to plaintiffs 'a further delay of such length of time that it was utterly unsafe to plant cabbage upon the other half of the leased property at such late season because of cold weather.' The cabbages that were planted upon the 40 acres that had been prepared by defendant came up and made a good stand. On November 10, 1943, the cabbage plants, being young and tender, were killed by a freeze. Had plaintiffs been able to plant the entire 80 acre tract in cabbages on or about September 1 as they had planned, the plants would have been hardy enough to have withstood the freeze which came on November 10, and would have produced a large tonnage of marketable cabbage which plaintiffs could have sold at a profit. Damages are claimed for the breach of contract.

Two...