Southern Colonization Co. v. Derfler

• Decision Date: 28 April 1917
• Citation: 73 Fla. 924,75 So. 790
• Parties: SOUTHERN COLONIZATION CO. v. DERFLER.
• Court: Florida Supreme Court

75 So. 790

73 Fla. 924

SOUTHERN COLONIZATION CO. v. DERFLER.

Florida Supreme Court

April 28, 1917

Appeal from Circuit Court, Osceola County; Jas. W. Perkins, Judge.

Suit in equity by H. D. Derfler against the Southern Colonization Company. Demurrer to complaint overruled, and defendant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

The word 'condition' is not necessary to the creation of an estate upon condition, if it plainly appears from the words used that the intent of the parties was to create an estate of that description.

Where a covenant is dependent, the failure to perform it entitled the other party to the contract to rescission.

In a contract for the sale of lands which contains a proviso that 'These presents are made and entered into partly in consideration thereof anything in this agreement to the contrary notwithstanding; that the vendor will construct and operate or cause to be constructed and operated on or before October, 1912, a line of railroad running approximately in a northerly and southerly direction through the body of land of which the aforesaid lands are a part; said line of railroad to be so constructed as to be within 10 miles thereof'--such proviso is a dependent covenant, and upon the failure of the land company to comply with the same the vendee has the right to a rescission of the contract and the return to him of any amount which he may have paid on the same.

To ascertain whether covenants are dependent or not, the intention of the parties is to be sought for and regarded rather than the order or time in which the acts are to be done, or the structure of the instrument, or the arrangement of the covenant.

A proviso in a contract creates a condition precedent, in the absence of anything in the contract to show that such was not the intention of the parties.

In a contract of sale where the article tendered is different in any respect from the article bargained for, the other party is not bound to take it.

When the failure to perform a contract is in regard to matters which would render the performance of the rest a thing different in substance from what was contracted for, the party not in default may abandon the contract.

Where one party to a contract, on the breach thereof by the other promptly gives notice that he will not be bound by the same and demands to be put in the position in which he was at the time the contract was made, and offers to surrender all his rights under the contract, and enters into negotiations with the other party with the object of settling their differences without recourse to the courts, which ultimately come to naught, the doctrine of laches will not be applied to defeat the injured party of his remedy, when only about three years have elapsed, unless it is clearly shown that the defendant has been injured or deprived of some defense by reason of the delay in instituting suit.

The difference between the value of wild and unimproved lands situated about 70 miles from any railroad, and the same lands with a railroad running through or within 10 miles from them may be very appreciable, but is so speculative as not to be susceptible of proof, and the party injured by the failure of one who agreed with him to construct the railroad has not an adequate remedy at law to recover damages for the breach.

COUNSEL Crawford & Jarrell, of Kissimmee, for appellant.

Dickinson & Dickinson, of Sanford, for appellee.

OPINION

BROWNE C.J.

The appellee, the complainant below, brought suit against appellant by bill in equity in Osceola county to cancel a contract for the sale of land, and to recover $730.95, with interest.

Under the terms of the contract, which is set out in full in the bill, the appellee agreed to buy a fraction over 82 acres of wild unimproved lands situated about 70 miles from any accessible railroad station, and was to pay therefor $1,441.30, with interest at the rate of 6 per cent. per annum, payable $480.40 on the execution of the contract, and the balance in five payments of $192.90 and interest on the 13th day of February of 1912, 1913, 1914, 1915, and 1916.

The contract contained this clause:

'Provided, however, and these presents are made and entered into partly in consideration thereof, anything in this agreement to the contrary notwithstanding:

'1. That the vendor (Southern Colonization Company) will construct and operate, or cause to be constructed and operated, on or before December 31, 1912, a line of railroad, running approximately in a northerly and southerly direction through the body of land of which the aforesaid lands are a part; said line of railroad to be so located as to be within ten (10) miles thereof.'

There are various other terms and stipulations which are not necessary to refer to here, as nothing is involved concerning them.

The complainant alleges in substance he made the initial payment of $480.40, and the first payment of $192.90 and interest amounting to $57.65, which came due on February 13, 1912, and otherwise complied with the terms of the contract. He further alleges that the Southern Colonization Company did not construct and operate or cause to be constructed and operated on or before December 31, 1912, a line of railway as conditioned in the contract, and that complainant, when the payment by him provided for in the contract came due on February 13, 1913, notified the defendant that he would not make the payment because the defendant had not built the railroad as provided and agreed, and demanded the return of the money he had paid on the contract, amounting to $730.95, and offered to return and surrender his contract; and after considerable correspondence between them, the defendant finally stopped corresponding and failed to comply with his demand; that complainant never took or entered into possession of the land, and that the same are wild and unimproved, and in the same condition that they were at the time the contract was entered into, and that he is ready and willing to place defendant in statu quo by surrendering the contract and relieving him from all liability to complainant, and that he has filed the contract and a duly executed release thereof in the registry of the court to be delivered to defendant on cancellation of the contract and return by defendant of money paid him by complainant on the same.

The defendant filed a demurrer to the bill on the following grounds:

'(1) The bill of complaint does not show a sufficient cause of action to warrant a rescission of the contract.

'(2) The bill of complaint shows that complainant has been guilty of laches.

'(3) The bill of complaint shows that complainant did not restore the property in controversy or any of the rights acquired in same to the respondent at the time rescission is claimed.

'(4) That the stipulation to build the railroad mentioned in said bill of complaint within a limited time is an independent covenant, and therefore not ground for rescission of any contract.'

The demurrer being overruled, the defendant appealed, and assigns as error the overruling of the demurrer.

The main question raised by the demurrer is whether the clause in the contract of sale whereby the Southern Colonization Company bound itself to construct and operate a line of railroad through the body of land of which the land under consideration is a part, the railroad to be located so as to be within ten miles thereof, is a dependent or an independent covenant. Notwithstanding that this question has been the source of much litigation, the authorities are helpful only in a general way, because while the rule seems to be clear that where a covenant is dependent, the failure to perform it entitles the other party to the contract to a rescission, we come back to the proposition, whether this is a dependent or an independent covenant, and for the determination of that we must look to the contract itself. Where the contract states clearly that any or all the covenants to be performed by one party are conditioned upon the other party carrying out his covenants, or any of them, there is no trouble in construing it; but where it is not so expressed, it becomes necessary to construe the contract and derive therefrom what was intended. The word 'condition' is not necessary to the creation of an estate upon condition, if it plainly appears from the words used that the intent of the parties was to create an estate of that description. Glocke v. Glocke, 113 Wis. 303, 89 N.W. 118, 57 L. R. A. 458; Richter v. Richter, 111 Ind. 456, 12 N.E. 698. 'To ascertain whether covenants are dependent or not, the intention of the parties is to be sought for and regarded, rather than the order or time in which the acts are to be done, or the structure of the instrument, or the arrangement of the covenant.' 2 Parsons on Contracts, 645.

A proviso in a contract creates a condition precedent, in the absence of anything in the contract to show that such was not the intention of the parties.

In Wright v. Tuttle, 4 Day (Conn.) 313, Mr. Justice Swift said:

'There is no word more proper to import or express a condition than the word 'provided'; and it shall always be so taken, unless it appear from the context to be the intent of the party that it shall constitute a covenant.'

In Robertson v. Caw, 3 Barb. (N. Y.) 410, the court said "Provided' * * * is the appropriate term for creating a condition precedent.' 'The word 'provided' means 'on condition." De Vitt v. Kaufman County, 27 Tex.Civ.App. 332, 66 S.W. 224. 'No word better expresses a condition, and it is always so taken, unless the context shows that the intent was to create a covenant.' Rich v. Atwater, 16 Conn. 409. Webster defines 'provided' as 'on condition; with the stipulation; with the...