Williams v. Noel, 58-87
| Decision Date | 02 October 1958 |
| Docket Number | No. 58-87,58-87 |
| Citation | 105 So.2d 901 |
| Parties | Violet C. WILLIAMS, Appellant, v. J. W. NOEL and Isabella G. Noel, Appellees. |
| Court | Florida District Court of Appeals |
Sturrup & Gautier, Miami, for appellant.
Jepeway & Dauber, Miami, for appellees.
The appellees J. W. Noel and his wife Isabella G. Noel filed a suit in the circuit court against the appellant Violet C. Williams, for specific performance of a contract, for sale of certain real estate, under which they were the sellers and appellant Williams was the purchaser. The contract submitted with the complaint was signed by the purchaser Williams and by J. W. Noel, but not by Isabella G. Noel. The complaint alleged Noel acted as agent of the owner, his wife Isabella. The allegation of agency was denied in the answer.
The plaintiffs (sellers) moved for summary final decree. Their motion was heard on the pleadings only, consisting of the complaint with its three exhibits, the answer and a counterclaim for the return of the deposit and the answer to the counterclaim. The exhibits attached to the complaint were a copy of the contract and an exchange of letters dealing with a question as to the title, in one of which the husband of the owner had offered to perform and had demanded performance by the purchaser. No affidavits or other evidentiary matter were presented, except some evidence as to attorney fees.
The chancellor entered a summary decree for specific performance against the defendant purchaser, who has appealed from that decree.
The appellant argues two points: that the pleadings raised a genuine issue relating to the husband's alleged agency for his wife; and, that the trial court could not properly find that plaintiffs were entitled to a summary decree for specific performance as a matter of law.
The rule relating to summary judgments not only provides that the moving party must show there is no genuine issue as to any material fact, but in addition must show that he is entitled to a summary judgment as a matter of law. Rule 1.36(c), 1954 Fla.Rules of Civ.Proc., 30 F.S.A.; Farrey v. Bettendorf, Fla.1957, 96 So.2d 889, 892. Here the complaint showed that Isabella Noel was the owner of the property involved, and that she did not sign the contract. A married woman's contract for sale of her property is not enforceable against her unless signed by her before two subscribing witnesses. See Berlin v. Jacobs, 156 Fla. 773, 24 So.2d 717; Dixon v. Clayton, Fla.1950, 44 So.2d 76; Zimmerman v. Diedrich, Fla.1957, 97 So.2d 120; and Lindgren v. Van Fleet, Fla.App.1958, 101 So.2d 155.
Appellant argued that the unenforceability against the seller Isabella Noel precluded the granting of specific performance against the purchaser. That argument, in effect, is that lack of mutuality of remedy prevents specific performance. We hold that in the instant case the sellers were entitled to the benefit of an exception to the rule contended for by the appellant. The owner Isabella Noel offered to perform by joining as plaintiff in the suit for specific performance. See Pinckney v. Morton, 5 Cir., 1929, 30 F.2d 885, 886, and cases cited there.
Equity deems the married woman's tender of performance to be equivalent to performance. Schmidt v. Kidden, 100 Fla.1684, 132 So. 194, 197.
The action of the married woman, in joining with her husband in the suit for specific performance of the contract, showed a ratification of his alleged agency for her, and amounted to an offer of performance by her creating mutuality of remedy at the time of the filing of the suit. See Standard Lumber Co. v. Florida Industrial Co., 106 Fla. 884, 141 So. 729, 732, where the Supreme Court said:
'So far as the principle of mutuality is involved as a prerequisite to the maintenance of the suit, it is mutuality of remedy in equity at the time of the filing of the bill that is required and not a mutuality in the terms of the contract when the contract was made.'
On first reading, it would appear that the holding in Gautier v. Bradway, 87 Fla. 193, 99 So. 879, was contrary to our decision in this case. However, as...
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Rohlfing v. Tomorrow Realty & Auction Co., Inc.
...of obligation or remedy"), was also erroneous for reasons other than those already given. This case fits into what in Williams v. Noel, 105 So.2d 901 (Fla. 3d DCA 1958), cert. discharged, 112 So.2d 5 (Fla.1959) was called "an exception" to the "mutuality of remedy" rule. In Williams, a cont......
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Sheehan v. Hubbard, 79-377
...to sign the lease agreement. That defense, therefore, does not entitle appellee to a summary judgment in his favor. Cf. Williams v. Noel, 105 So.2d 901 (Fla.3d DCA 1958) (wife signified her ratification of husband's execution of contract to sell entireties property by her joinder with him i......
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Williams v. Noel
...briefs and record, leads us to the conclusion that on the basis of the findings of the Court of Appeal, as reflected by its opinion, 105 So.2d 901, that court disposed of the matter with a decision which fails to collide with a prior decision of this court on the same point of law. The writ......
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Schreiner v. Holland, 3D01-1396.
...765 So.2d 296, 298 (Fla. 4th DCA 2000); 2 Fla. Jur.2d Agency and Employment §§ 16, 17 (1998). The plaintiff relies on Williams v. Noel, 105 So.2d 901 (Fla. 3d DCA 1958), but that is a ratification case which has no application here. In that case Williams was the purchaser of real estate and......