Stanley v. Anthony Farms

• Decision Date: 18 February 1927
• Parties: STANLEY v. ANTHONY FARMS.
• Court: Florida Supreme Court

112 So. 57

93 Fla. 295

STANLEY v. ANTHONY FARMS.

Florida Supreme Court

February 18, 1927

Error to Circuit Court, Marion County; W. S. Bullock, Judge.

Action by F. W. Stanley against the Anthony Farms. Order and judgment of dismissal, and plaintiff brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Where vendor gives notice of his breach and sells land to third party, purchaser may immediately sue without tendering performance. Where a vendor, who has contracted to convey land upon the payment of certain amounts, before the time for payment arrives, notifies the purchaser that he will not carry out the contract, and sells the same land to a third party, he thereby breaches the contract, and the purchaser may immediately sue for the breach thereof, without a tender of performance on his part.

COUNSEL

H. M. Hampton, of Ocala, for plaintiff in error.

Anderson & Anderson, of Ocala, for defendant in error.

OPINION

KOONCE Circuit Judge.

Plaintiff in error, as plaintiff below, sued the defendant in an action at law to recover damages for the alleged breach of contract. The declaration alleges that, by a certain bilateral contract or written agreement, copy of which is appended to the declaration and made a part thereof, the defendant agreed to sell to the plaintiff and the plaintiff agreed to purchase from the defendant certain therein-described lands in Marion county; a certain amount was paid in cash at the time of making the contract, the balance to be paid in ten yearly installments, or at the option of the purchaser at any time before the expiration of the ten years; that, upon the payment in full of the purchase price, the vendor defendant would make a deed of conveyance to the purchaser plaintiff. Further details of the contract are not necessary for the consideration of the case. After reciting the foregoing facts as inducement, the declaration avers a breach of the contract in the following language:

'Plaintiffs avers that the defendant breached the said contract thereafter, and refused to convey the said land to the plaintiff or to carry out its said contract, and has notified the plaintiff that it will not carry out said contract. Plaintiff avers that the plaintiff is ready willing, and able, and has at all times been ready willing, and able to carry out said contract, but that defendant has failed and refused and has sold the said tract of land to another person, thereby rendering itself incapable of carrying out the same. Plaintiff avers that the said lands were reasonably worth the sum of $150 an acre, and that he purchased the same for the sum of $63 an acre, and thereby the plaintiff has lost the benefit of said transaction and has suffered damages in the sum of $87 an acre, to wit, the sum of $1,392; wherefore plaintiff brings this his suit and claims damages, $2,000.'

To the declaration, the defendant filed demurrer which was sustained by the circuit judge, and, the plaintiff declining to plead over, thereafter an order and judgment was entered dismissing the suit. A writ of error was taken to the order of dismissal; and the order sustaining this demurrer and the dismissal of the cause are assigned as error. Both assignments are considered together in the arguments of both attorneys, and will be so considered in this opinion.

In the well-considered case of Hall v. Northern & Southern Co., 55 Fla. 235, 46 So. 178, this court delivered an opinion which fully covered the law of that case, and, upon a petition being filed for rehearing, elaborately explained that opinion, and yet we have here the very novel situation of the attorney for the plaintiff and the attorney for the defendant each relying solely upon the cited case to sustain his contention in the instant case, presenting no other authority whatsoever. This illustrates the wonderful flexibility of the English language.

Citing the Hall Case referred to, the attorney for defendant in error says in his brief:

'The law of this state, as held in the later case, is established that, until the time for conveyance under the executory contract for the sale of land has arrived, a vendee can recover no damages, even though the vendor has in fact conveyed all the property to a third party and has put such third party in the actual possession.'

The plaintiff's attorney states in his brief that the circuit judge----

'took the position that in no case where the time for performance had not arrived could the vendee recover damages, although the vendor had completely parted with his title and put it beyond his power to convey.'

The order of the circuit judge sustaining the demurrer, does not indicate upon which of the fifteen stated grounds of the demurrer it was so sustained, and it is possible that the order was made for reasons not stated in the briefs of the attorneys. But, inasmuch as such other reason (if any) is not stated, and the arguments of the attorneys are confined almost exclusively to the question of this condition precedent, this opinion will likewise in the main be directed to a consideration of that question.

In the case of Lynam v. Harvey, 12 Del. Ch. 129, 108 A. 850, text 854, it is said:

'If a vendor of land sells and conveys it before the time arrives for performance by the vendee, he is entitled to sue on the contract without making a tender'--citing 3 Elliott on Contracts, § 1972; Lea v. Ennis, 6 Houst. (Del.) 433; Lowe v. Harwood, 139 Mass. 133, 29 N.E. 538; Warvelle on Vendors (2d Ed.) §936.

From the long list of decisions of other states than this, holding to the same effect as the cited case, the following may be noted: Newcomb v. Brackett, 16 Mass. 161; Nesbit v. Miller, 125 Ind. 106, 25 N.E. 148; Higgins v. Eagleton, 155 N.Y. 466, 50 N.E. 287; Wolff v. Meyer, 75 N. J. Law, 181, 66 A. 959, reaffirmed Id., 76 N. J. Law, 574, 70 A. 1103; Meyers v. Markham, 90 Minn. 230, 96 N.W. 335, 787; Matteson v. United States & C. Land Co., 103 Minn. 407, 115 N.W. 195; Beiseker v. Amberson, 17 N.D. 215, 116 N.W. 94; Speer v. Phillips, 24 S.D. 257, 123 N.W. 722; Buechler v. Olson, 194 Iowa, 245, 189 N.W. 741; Munson v. McGregor, 49 Wash. 276, 94 P. 1085; Palmer v. Clark, 52 Wash. 345, 100 P. 749; Boothe v. Dailey, 96 Kan. 711, 153 P. 551; Boothe v. Dailey, 103 Kan. 255, 173 P. 283; Cornelius v. Harris (Tex. Civ. App.) 163 S.W. 346; Bowen v. Speer (Tex. Civ. App.) 166 S.W. 1183; Haddaway v. Smith (Tex. Civ. App.) 277 S.W. 728; Samonds v. Cloninger, 189 N.C. 610, 127 S.E. 706; Hawkins v. Merritt, 109 Ala. 261, 19 So. 589, text 591; Brady v. Green, 159 Ala. 482, 48 So. 807; Moss v. King, 186 Ala. 475, 65 So. 180; Greenberg v. Ray, 214 Ala. 481, 108 So. 385.

This court has not departed from these generally accepted views of the law, but, on the other hand, is in complete harmony with this line of decisions. Vide Thomas v. Walden, 57 Fla. 234, 48 So. 746, where it is said:

'When vendors are wholly unable to give title to a considerable portion of land contracted to be sold, strict legal tender by the vendee is not necessary.'

Also Duval Inv. Co. v. Stockton, 54 Fla. 296, 45 So. 497, text 498:

'If a tender of the second payment and a...