Stoltenberg v. Hughes

• Decision Date: 16 June 1944
• Citation: 154 Fla. 519,18 So.2d 475
• Parties: STOLTENBERG v. HUGHES et al.
• Court: Florida Supreme Court

18 So.2d 475

154 Fla. 519

STOLTENBERG v. HUGHES et al.

Florida Supreme Court

June 16, 1944

Rehearing Denied July 7, 1944.

Appeal from Circuit Court, Palm Beach County; George W. Tedder judge.

Edwin T Osteen, of West Palm Beach, for appellant.

Elbert B Griffis and Rogers, Morris & Griffs, all of Fort Lauderdale, for appellees.

CHAPMAN, Justice.

The basis of this appeal is a written agreement for deed signed by the parties. The terms and conditions of the trade, the description of the land, a merchantable title, and amount of the purchase price and time of payments, with other essentials of the trade appear elaborately expressed and set forth in the agreement for deed. The appellant here is the owner and the appellees are the buyers. The land is situated in Palm Beach County.

The Chancellor below heard the parties on the bill of complaint and the answer thereto, no testimony having been taken or offered by either of the parties, when a decree for the purchasers was entered, simultaneously correcting on error in the description of the land, and the decree challenged in this Court directed a specific performance of the several provisions of the written agreement for deed as signed by the parties. The defendant below appealed.

Counsel for appellant pose for adjudication the question, viz.: In a suit for specific performance on final hearing on bill and answer after the time for taking testimony has expired, an allegation in the answer alleges the agreement sued upon was not a completed contract, is the plaintiff entitled to a decree against the defendant specifically performing the contract?

Section 63.40, Fla.Stats.1941 (F.S.A.) provides that a 'plaintiff may, within ten days after the filing of the answer * * * move for a decree on bill and answer, and if the motion be overruled the plaintiff shall have the right to proceed to trial * * * if the answer be found insufficient as a defense, but amendable, the court may permit it to be amended on such terms and conditions as may be equitable.'

It is settled law that on a hearing on bill and answer, after the time for taking testimony has expired, every allegation in the answer responsive to the bill of complaint is taken as true if there is only the bill and answer before the Court, and, if the answer denies all the material allegations of the bill, the issues are made by the denials, and a final decree should be entered against the party having the burden of proof. See Davis v. Wilson, 139 Fla. 698, 190 So. 716. Averments of an answer responsive to the bill by way of avoidance must be proven by defendant. Whittaker v. Eddy, 109 Fla. 535, 147 So. 868. Allegations in an answer responsive to the bill on final hearing on bill and answer are accepted as true. Watson v. Blair, 73 Fla. 255, 74 So. 317.

It is contended that the Chancellor below, as a matter of law, under the issues made by the bill of complaint and the answer thereto was only authorized to dismiss the bill of complaint because the answer denied each and every the material allegations of the bill of complaint. Emphasis is placed on allegations of the answer to the effect that (1) the appellant signed the agreement for deed and accepted $500 as down payment with the understanding that his (appellant's) wife would subsequently sign the agreement, which she declined to do; (2) the title to the described property was not merchantable for various reasons; (3) the minds of the parties never met and for this reason a lawful contract of purchase and sale never was signed.

The answer to this contention is the allegations...