Whitson v. Owens

• Decision Date: 05 January 1928
• Citation: 115 So. 512,94 Fla. 1201
• Parties: WHITSON v. OWENS et ux.
• Court: Florida Supreme Court

115 So. 512

94 Fla. 1201

WHITSON v. OWENS et ux.

Florida Supreme Court

January 5, 1928

Suit by E. H. Whitson against C. D. Owens and wife for specific performance. From orders sustaining demurrers to the original and an amended bill of complaint and dismissing them complainant appeals.

Affirmed.

Syllabus by the Court

SYLLABUS

Executory agreement for sale of land, failing to describe or otherwise identify it and name purchase price and time of payment, held not enforceable in equity. An executory agreement for the sale of land, which fails to describe or otherwise identify the land and name the purchase price and time of payment, is not enforceable in a court of equity.

Appeal from Circuit Court, Broward County; C. E Chillingworth, judge.

COUNSEL

McCune Casey, Hiaasen & Fleming, of Ft. Lauderdale, for appellant.

Baxter, Byrd & Walton, of Ft. Lauderdale, for appellees.

OPINION

ADKINS Circuit Judge.

This is an appeal from orders sustaining demurrers to an original and an amended bill of complaint and dismissing the bills.

The complainant, E. H. Whitson, exhibited his bill of complaint against C. D. Owens and Mrs. C. D. Owens, for the specific performance of an alleged contract for the sale of certain lots in Hollywood, Broward county, Fla., made between the Hollywood Investment Company, a corporation, and the complainant.

A demurrer was interposed to the bill, and an order sustaining the demurrer and allowing the complainant to file an amended bill was entered.

An amended bill was filed incorporating certain paragraphs of the original bill and making reference thereto, leaving out paragraph 3, which contained a copy of the contract of sale between the Hollywood Investment Company and the complainant; the amended bill does not refer to same and does not contain or refer to said contract.

A demurrer was interposed to the amended bill, and an order sustaining the demurrer and dismissing both bills was entered, from which the appeal was taken.

The complainant filed two assignments of error:

'(1) The court erred in sustaining the defendant's demurrer with leave to amend by the next rule day, which order was rendered on the 10th day of July, A. D. 1925, and recorded in Chancery Order Book, vol. 5, at page 239.

'(2) The court erred in rendition of its final decree sustaining the joint and several demurrer of the defendants and dismissing the first amended bill of complaint together with the original bill of complaint dated October 28, 1925, and recorded in Chancery Order Book, vol. 5, p. 370.'

The bill brought to enforce specific performance on the contract made by the Hollywood Investment Company to the complainant was based on the following letter and telegrams passing between the Hollywood Investment Company and the defendant C. D. Owens:

'I would not be willing to put lots one, two, three and four of block twenty-five of Hollywood in exclusive sale, however, will sell at eighty-five hundred dollars for the four lots net to me. The boulevard lots I am sure will be more valuable later.

_________________________________ 'Yours respectfully, Dr. C. D. Owens.'

This letter purported to be written on July, 14, 1924.

On November 18, 1924, the Hollywood Investment Company wired Dr. C. D. Owens as follows:

'Hollywood, Fla., Nov. 18, 1924.

'Dr. C. D. Owens, 1210 Scribner Avenue, Grand Rapids, Mich.

'Wire immediately your best price and terms two boulevard lots block eight also four lots block twenty-four.

'Hollywood Investment Co.'

In reply to this telegram, Dr. C. D. Owens sent the following telegram:

'Grand Rapids, Mich., Nov. 20, 1924.

'Hollywood Investment Co., Hollywood, Fla.

I have lots thirty, thirty-one and thirty-two, on boulevard that I intend to hold until I get eight thousand each net to me four lots block twenty-five will sell for nine thousand net price good until January first with any reasonable terms.

Dr. C. D. Owens.'

The bill alleges that C. D. Owens was the owner of the land described in the bill, and on the 20th day of November, 1924, authorized the Hollywood Investment Company to offer for and sell the land on certain conditions as stated in the telegram of November 20, 1924, to them from Dr. C. D. Owens; that under said authority, the Hollywood Investment Company entered into the following contract with complainant for the sale of said land:

'Hollywood, Fla., Dec. 1, 1924.

'The Hollywood Investment Company agrees to sell and the undersigned E. H. Whitson agrees to buy as per wire offer under date of November 20, 1924, from the owner to the Hollywood Investment Company, the following described property: Lots 30, 31 and 32, block 8, Hollywood Central section and Lots 1, 2, 3 and 4, block 25, Hollywood Central section, all of which is located in section 15, township 51 south, range 42, east of Broward county, Florida.

'The purchase price of lots 30, 31 and 32, block 8, Hollywood, is accepted as $26,400.00. The purchase price of lots 1, 2, 3 and 4, block 25, Hollywood, is accepted as $9,900.00.

'The buyer of said property has paid to the said Hollywood Investment Company, $500.00 (five hundred dollars) as good-faith money, receipt of which is hereby acknowledged.

'It is understood that the owner of the above-mentioned property will accept any reasonable terms as per his wire offer, with deferred payments secured by mortgage. It is also understood that the owner will furnish warranty deed and merchantable abstract as soon as same can be produced.

'Hollywood Investment Company,

'By I. N. Berry, Jr.

'E. H. Whitson,

'Purchaser.

'Witnesses:

'Clyde B. Elliott.

'Velma L. Aspy.'

It is alleged that the complainant accepted the terms, conditions, and provisions contained in said contract above set forth, and that he has always been ready, willing, and able to comply with his part of the contract to be performed, and had complied, up to date of the filing of the bill, with all of the covenants, terms, and conditions on his part to be performed.

It is alleged that the defendant C. D. Owens agreed to...