Triple E Development Co. v. Floridagold Citrus Corp.

• Decision Date: 23 February 1951
• Citation: 51 So. 2d 435
• Parties: TRIPLE E DEVELOPMENT CO. v. GLORIDAGOLD CITRUS CORP.
• Court: Florida Supreme Court

Page 435

51 So.2d 435

TRIPLE E DEVELOPMENT CO. v.GLORIDAGOLD CITRUS CORP.

Supreme Court of Florida, en Banc.

Feb. 23, 1951.

Rehearing Denied April 7, 1951.

Chester H. Ferguson, of Macfarlane, and Ferguson, Allison & Kelly, Tampa, for petitioner.

W. H. Hamilton, H. Gunter Stephenson, Jack Straughn, all of Winter Haven, and Mabry, Reaves, Carlton, Anderson, Fields & Ward, Tampa, for respondent.

CHAPMAN, Justice.

On July 25, 1949, the Floridagold Citrus Corporation owned real and personal property (consisting largely of citrus groves) located in Polk, Brevard and Lake Counties and on the aforesaid date executed a contract to sell said property to the Triple E Development Company for the total sum of $2,048,000.00.The sum of $100,000.00 was paid by the Triple E Development Company to the Floridagold Citrus Corporation at the time the contract of sale was executed.The date of closing the sale, by the terms of the contract as made by the parties, was October 1, 1949, when the additional sum of $250,000.00 would become due and payable.The balance due on the purchase price of the property was to be evidenced by a single promissory note and secured by real estate and personal property mortgages incumbering all the property transferred.A description of the real and personal property involved is not material or pertinent to a decision of this controversy.

Paragraph 7 of the contract of purchase and sale is viz.:

'All hazards and risks to all assets shall continue those of the party of the first part until the transaction is closed on October 1, 1949, and if there is any substantial damage to the assets, including fruit crop, occasioned through fire, windstorm or other causes prior to the closing, not fully covered by insurance, it shall be optional with the party of the second part to conclude or refuse to conclude the purchase without any liability on its part.Should the damage to the assets aforesaid be occasioned, which is not fully covered by insurance, then at the option of the party of the second part it may, by written notice to the party of the first part, terminate this contract without liability, and upon demand the deposit of $100,000,00 heretofore made shall be immediately refunds to the party of the second part.If the loss or damage is fully covered by insurance, the proceeds of such insurance shall be collected and remitted to the party of the second part as soon after the closing of this sale as is possible.It is understood that damage to said property, in order to entitle the second party to relieve itself from the obligations hereof, must be so material as to substantially reduce the value of the remaining property.As an example, it is conceivable that a hurricane could cause substantial damage to the fruit crop now on the trees and the remaining fruit would still be worth as much, or practically so, market value, as the whole would have been, and it is the intent of the parties that if the remaining undamaged property has a market value substantially equal to the value of the whole had there been no damage, the second party shall be obligated to consummate the purchase.'

The Floridagold Citrus Corporation, on September 30, 1949, addressed a letter to the Triple E Development Company at Dade City, Florida, about alleged hurricane loss or damages to the fruit then on the groves situated in Polk, Brevard and Lake Counties covered by the contract of sale, which losses or damage occurred August 27, 1949.Pertinent is the following language:

'On or about August 26, 1949, there occurred a hurricane which destroyed an undetermined number of Boxes of citrus fruit then on the trees located on the property being sold to you.Included in the sale, of course, was all citrus fruits as will appear by reference to the contract.Since the hurricane, and up to this date, you have contended that under the provisions of said contract, and particularly paragraph 7 thereof, Floridagold is legally obligated to allow you an abatement on the purchase price agreed in the contract to be paid.We, on the other hand, have expressly denied, and now expressly deny, that under the terms of said contract, and particularly paragraph 7 thereof, that you are entitled to any abatement on the purchase price by reason of the destruction of the citrus fruit by the hereinabove mentioned hurricane.

'The closing date set for the consummation of the sale is October 1, 1949, and you have proposed that the sale be consummated in accordance with the terms of the contract with the understanding that if at any time between the date hereof and November 1, 1950, you should file suit in the appropriate court of Polk County, Florida, to determine whether under said contract you are entitled to an abatement on the purchase price, we will not plead an estoppel or waiver on your part to bring said suit by reason of the closing on this date in accordance with the terms of the contract.

'While, as above set forth, we expressly deny that you are entitled to any reduction in the purchase price by reason of said hurricane, we, nevertheless, agree that should you bring an action between now and November 1, 1950 for the purpose of having the question judicially determined, we will not interpose as a defense an estoppel or waiver by reason of the closing on this date.

'By this agreement not to plead estoppel or waiver against you, is not to be construed as an agreement not to plead any other defense available to this company to any action you may institute, nor shall it in anywise be construed as an admission on our part that you are legally entitled to any reduction in the purchase price by reason of the damage hereinabove mentioned.'

On October 1, 1949, W. H. Hamiltin, attorney for Floridagold Citrus Corporation, wrote Chester Ferguson, attorney for Triple E Development Company, and confirmed the agreement that Triple E Development Company would have until November 1, 1950, in which to bring suit to ascertain whether or not the seller of the described property or the buyer thereof should sustain the hurricane losses or damages to the fruit which occurred on August 27, 1949.The contract of sale was in other respects satisfactorily closed and the parties by agreement were to obtain an adjudication by the courts of the hurricane losses or damages to the fruit, as defined by the terms and provisions of the purchase and sale agreement dated July 25, 1949.

The Triple E Development Company, on March 22, 1950 filed in the Circuit Court of Polk County its amended bill of complaint and alleged that on October 1, 1949, pursuant to the contract of purchase and sale the buyer paid to the Floridagold Citrus Corporation, the seller, the additional sum of $250,000.00 and simultaneously executed a note payable to the Floridagold Citrus Corporation in the sum of $1,693,000.00, being the balance due on the purchase price of all of the described property, both real and personal, as described in the contract of purchase and sale.Mortgages securing the payment of the above note, pursuant to the purchase and sale contract dated July 25, 1949, were executed by the Triple E Corporation.

It was further alleged that at the time of the execution of the purchase and sale contract by the parties on July 25, 1949, there were not less than 500,000 boxes of citrus fruit on the trees on the citrus groves covered by the aforesaid contract.On August 27, 1949, after the execution of the contract and prior to the closing date on October 1, 1949, a severe hurricane struck the citrus property and destroyed not less than 162,000 boxes of citrus fruit which were on the trees on July 25, 1949, and the seller failed to deliver the same to the purchaser; it was the obligation and duty of the Floridagold Citrus Corporation, under the purchase and sale agreement, to deliver said 162,000 boxes of citrus fruit to the Triple E Development Company on October 1, 1949, or to permit or allow an abatement of the values thereof as against the agreed purchase price in the total sum of $2,048,000.00.Or since the parties have closed the sale by mutual agreement left open for adjudication by the court the question of the hurricane losses or damages to the fruit, then the value of the 162,000 boxes of fruit should be ascertained and a credit allowed on the original note in the sum of $1,693,000.00 as given by the Triple E Development Company to Floridagold Citrus Corporation as the balance due on the property covered by the purchase and sale agreement.

The Triple E Development Company in its amended bill of complaint prayed (1) for an order or decree construing the rights of the respective parties with reference to the loss of the 162,000 boxes of citrus fruit alleged to have been caused by the hurricane on August 27, 1949, as defined by the purchase and sale agreement dated July 25, 1949, and particularly paragraph 7 thereof; (2) the Triple E Development Company under the purchase and sale agreement was entitled to a credit on its note (previously delivered which represented the balance due on the purchase price of all the property) to the extent of the value of the 162,000 boxes of citrus fruit destroyed by the hurricane; (3) evidence should be taken as to the value of the lost or destroyed fruit and a credit allowed on the original note to the extent of the value of said losses.Attached to and made a part of the amended bill of complaint was a copy of the purchase and sale agreement of the parties and numerous other pertinent exhibits.

The Floridagold Citrus Corporation filed a motion to dismiss the amended bill of complaint on grounds substantially as follows: (1) the amended bill fails to state a claim for...