Sun City Holding Co. v. Schoenfeld

• Decision Date: 11 May 1929
• Citation: 97 Fla. 777,122 So. 252
• Parties: SUN CITY HOLDING CO. v. SCHOENFELD.
• Court: Florida Supreme Court

122 So. 252

97 Fla. 777

SUN CITY HOLDING CO. v. SCHOENFELD.

Florida Supreme Court

May 11, 1929

En Banc.

Suit by Elizabeth B. Schoenfeld against the Sun City Holding Company.From order overruling demurrer to bill of complaint defendant appeals.

Affirmed.

Buford J., dissenting.

Syllabus by the Court

SYLLABUS

Purchaser's bill based on speculative promises and matters of opinion held to state no ground for rescission for misrepresentations.Bill by purchaser based on statements concerning early resale, probable profits, and advertising and other methods of exploitation, mere speculative promises and matters of opinion, without any showing that such representations as to future acts were made with present fraudulent intent, held not to allege grounds for rescission for misrepresentations.

Purchaser's bill held to make a prima facie case for rescission on theory of covenant to pay and covenant to improve streets, being dependent covenants to be performed concurrently.Bill of purchaser of lots in city being developed by defendant vendor held to make a prima facie case for rescission of executory contracts for purchase, on the theory that complainant's covenant to pay in installments and defendant's covenant that in its development of the city it would install in the adjoining streets electric light and water and pave and lay sidewalks, etc., are dependent covenants to be performed concurrently, and that defendant, who has failed to perform its covenant, has had a reasonable time for performance.

Matters to be considered in ascertaining intention, the controlling element in determining whether or not covenants are dependent.In determining whether or not covenants are dependent, the intention of the parties, the ultimate controlling element, is to be sought for and regarded in the light of all the circumstances evidenced by the contract, and the court will consider whether the acts contemplated by the covenants are merely subordinate and incidental, or whether they go to the entire consideration of the contract, whether the matters relied on by complainant amount to mere promises or expectations of future events or relate to material and dependent acts to be performed concurrently with the covenants of the other party, and all other facts and circumstances from which intention may be ascertained.

Purchaser of lots is entitled to rescission on ground of inadequate remedy at law for vendor's nonperformance of dependent covenants to improve streets and install light and water.The remedy at law of purchaser of lots under executory contracts for vendor's nonperformance of dependent covenant to improve streets and install lights and water therein, being inadequate, he is entitled to the remedy of rescission.

Appeal from Circuit Court, Pinellas County; De Witt T. Gray, judge.

COUNSEL

Mabry, Reaves & Carlton, of Tampa, for appellant.

Anderson & Lewis, of St. Petersburg, for appellee.

OPINION

STRUM J.

This is an appeal from an order overruling a demurrer to a bill of complaint seeking the rescission of several contracts for the purchase of lands, and the recovery of payments made on account of the purchase price thereof.

Complainant below, Elizabeth B. Schoenfeld, agreed to purchase from the defendant below, Sun City Holding Company, lots 2 to 11, inclusive, block 17, section A, of Sun City, a subdivision then being developed by the defendant.The purchases seem to have been embraced in one transaction, though a separate contract was entered into for each lot.One of the contracts, dated May 21, 1925, is attached to and made a part of the bill.The said contracts are executory.Complainant agreed to pay a portion of the purchase price of said lots in cash, which cash payments, aggregating $4,250, were made.The remainder of the purchase price was to be made in deferred payments at intervals of six months thereafter.It appears that a further payment of $500 was made on account of one of the lots on July 24, 1925.Whether any further payments have been made on account of the deferred payments does not appear by the bill.

Each of the contracts in question contains numerous reservations and covenants, amongst which are the following covenants appearing under the general caption, 'Terms and Conditions':

'The seller agrees in its development of Sun City to (a) accomplish installation on the street or streets adjoining said land of electric lights and water facilities; (b) accomplish paving of said street or streets adjoining said land and the laying of sidewalks on each side thereof; (c) beautify said streets and parkways adjoining said land with trees and ornamental shrubbery in keeping with its development of Sun City.'

The bill of complaint, which was filed November 18, 1926, alleges that 'said lands were then (at the time of the execution of the contract and are now unimproved, and said improvements were then and are now a necessity to make said lands saleable and proper for occupation, and said defendant, after demand and the lapse of a reasonable time, failed to make said improvements or any of them, and have not made same to this date.'Complainant further alleges that she purchased the lots for investment purposes, for the purpose of resale, and in reliance upon the covenants of the defendant hereinabove set out, and that she was induced thereby to enter into said contracts and make the payments aforesaid.

The defendant demurred to the bill, assigning numerous matters of law to be argued, the purport of which are that the allegations of the bill are not sufficient to constitute fraud as a basis for rescission or other relief in equity; that the allegations of the bill are inconsistent with the terms of the contract attached thereto; that it appears that the complainant was herself in default; and that it does not appear that a reasonable time has elapsed for the accomplishment of the several improvements hereinabove referred to.The demurrer was overruled, from which order this appeal was taken.

The bill of complaint is loosely drawn.In some respects it is vague almost to the point of insufficiency.It does not, however, altogether fail to state a case for equitable relief.

Defendant below is correct in its contention that the bill does not sufficiently allege grounds for rescission on account of fraud in the misrepresentation of existing material facts relied upon by the vendee to her injury, as in Riverside Inv. Co. v. Gibson,67 Fla. 130, 64 So. 439, andNixon v. Temple Terrace Estates(Fla.)121 So. 475, decided March 30, 1929.See, also, Holgate v. Jones,94 Fla. 198, 113 So. 714;Mendelsohn v. Dodson(Fla.)116 So. 474;andInternational, etc., v. McAdoo,87 Fla. 1, 99 So. 117.Many matters relied upon in the bill, such as the alleged representations concernings an early resale of the property, the probable profits to be made, advertising by moving pictures, and other methods of exploitation, are no more than mere speculative promises and matters of opinion, and do not constitute false representations of existing facts; nor does it sufficiently appear that such representations as to those future acts were made with present fraudulent intent, within the meaning of that rule.SeeHarrington v. Rutherford,38 Fla. 321, 21 So. 283;Glass v. Craig,83 Fla. 408, 91 So. 332.

The bill of complaint, however, in another aspect, makes a prima facie case for equitable relief by rescission.As the matter appears by the allegations of the bill, the covenant of the complainant-vendee to pay the purchase price, and the covenant of the defendant-vendor, hereinabove quoted, to accomplish stated improvements, are dependent covenants to be performed concurrently; the vendor being entitled to a reasonable time under all the circumstances to accomplish said improvements, no specific date for the commencement or completion thereof being fixed by the contract.

In determining whether covenants are dependent or not, the intention of the parties is to be sought for and regarded in the light of all the circumstances evidenced by the contract.The court will consider whether the acts contemplated by the covenants in question are merely subordinate and incidental, or whether they go to the entire consideration of the contract; whether the matters relied upon by the complaining party amount to mere promises or expectations of future events, or whether they relate to material and dependent acts to be performed concurrently with the covenants of the other party; and all other facts and circumstances from which the intention of the parties, which is the ultimate controlling element, may be ascertained.

The complainant below did not agree to pay the sums above mentioned for the lots as they were when the contracts were made, but as they would be when the stipulated improvements had been accomplished.For those sums the complainant is entitled to receive, not unimproved land in the condition in which it was when the contracts were executed, but lots improved by the installation of streets and sidewalks on the adjoining streets, electric lights, and water facilities and with the parkways adjoining said lots beautified with trees and ornamental shrubbery in keeping with the development of Sun City.That complainant intended to buy, and that defendant agreed to sell, her lots so improved is clear from the contents of the contract.The deferred payments were distributed over an extended period of time.No specific time is stipulated in the contract as to when the improvements should begin or within which they should be completed, the sole reference thereto being that the defendant agreed to accomplish the same 'in its development of Sun City.'This provision, however, does not mean that the improvements are to be...