Saleeby v. Potter

• Decision Date: 17 May 1974
• Docket Number: No. 73--383,73--383
• Citation: 295 So.2d 130
• Parties: John A. SALEEBY, Appellant, v. Paul W. POTTER, Jr., as Executor of the Estate of Vincent M. Chaine, Deceased, Appellee.
• Court: Florida District Court of Appeals

Page 130

295 So.2d 130

John A. SALEEBY, Appellant, v.Paul W. POTTER, Jr., as Executor of the Estate of Vincent M. Chaine, Deceased, Appellee.

No. 73--383.

District Court of Appeal of Florida, Fourth District.

May 17, 1974.

Rehearing Denied June 17, 1974.

Daniel H. Jones, of Moyle, Gentry, Jones & Flanigan, P.A., West Palm Beach, for appellant.

J. Reid Heuer, of Heuer, Albury & Okell, West Palm Beach, for appellee.

SMITH, D.C., Associate Judge.

The appellant, the plaintiff below, through his complaint sought specific performance, an accounting and a money judgment.Each defendant in his/her answer joined in plaintiff's prayer for an accounting.

The trial court in its final judgment made the following recitals, findings and determinations:

'This suit seeks the specific performance of an option given by one co-tenant to the other co-tenant, relating to the vendor's undivided interest in the jointly owned properties, consisting of three parcels of real estate in Palm Beach County.

The vendor, one Chaine, died December 16, 1968, at time prior to the institution of this suit.The purchaser, one Saleeby, died July 12, 1971, pending the action.

Two of the parcels were improved and revenue producing, while the third one was unimproved and unproductive.The deeds by which the co-tenants acquired title purported to vest in each an undivided half interest in each parcel.One of the deeds was dated April 16, 1965, another was dated May 4, 1965, and the third was dated May 13, 1965.It was agreed at the trial that one of the parcels cost $13,000, another cost $8,000, and the third cost either $6,000 or $6,250.Of the total sum paid for the land, Chaine paid $23,100 and the purchaser, Saleeby, paid either $4,000 or $4,250.As a result, Saleeby owed Chaine no less than $9,425 to equalize their payments for the properties.

'The trial of the disputes between the present parties ot this suit was made more difficult because of the death of the principals as above noted.

Under date of March ---, 1967, Chaine signed a memorandum as follows: 'I agree that my partner, John Saleeby, may buy my half share of our joint properties at anytime that he finishes paying up, at our original price.'

Later, on August 5, 1967, Chaine signed what purports to be a codicil to his will in which he referred to the fact that 'John A. Saleeby shall have the Option to purchase any real property wherein the ownership is one of co- ownership between John A. Saleeby and myself.This Option shall be effective for a period of six (6) months from the notification to him of my death at the price which I paid for my half of said property.If John A. Saleeby does not exercise this Option within said six months, this Option shall cease and be null and void.I specifically order and direct my Executor to make this property available to John A. Saleeby at the exact Purchase Price of my one-half interest, and I direct that he shall execute any and all Documents necessary to accomplish this.'

As noted, Saleeby should have paid Chaine $9,425 to equalize their investments in the properties.In order to exercise the option, Saleeby would have to pay to Chaine the further sum of $13,675.In addition, during the entire ownership of these properties, Saleeby was in charge of it, collecting rents and proceeds, maintaining the property and paying taxes, insurance, etc.Thus, there were three accounts from Saleeby to Chaine: (1) Repayment of Chaine's advances in behalf of Saleeby in purchasing the properties; (2) Saleeby's purchase of Chaine's undivided half interest according to the option; and, (3) Saleeby's duty to account to his co-tenant,...