Wilson v. Odom

• Decision Date: 17 October 1968
• Docket Number: No. J-102,J-102
• Citation: 215 So.2d 37
• Parties: W. P. WILSON, Appellant, v. J. D. ODOM, Jr., and Vernie Phillips Odom, his wife, and the First National Bank of Live Oak, a banking corporation organized and existing under the laws of the United States of America, and George M. Beech, Appellees.
• Court: Florida District Court of Appeals

Page 37

215 So.2d 37

W. P. WILSON, Appellant, v. J. D. ODOM, Jr., and Vernie Phillips Odom, his wife, and the First National Bank of Live Oak, a banking corporation organized and existing under the laws of the United States of America, and George M. Beech, Appellees.

No. J-102.

District Court of Appeal of Florida, First District.

Oct. 17, 1968.

Duss, Butler & Marees, Jacksonville, for appellant.

Robert A. Andreu, St. Augustine, for appellees.

SPECTOR, Judge.

This is an appeal from a final judgment denying the purchaser specific performance pursuant to an option agreement to purchase real property.

Briefly stated, the facts show that the appellant Wilson obtained possession of the property here involved from appellee Odom's predecessor in title under a lease that contained an option to purchase.

The appellant, in due course, exercised his option to purchase and upon the appellee's refusal to convey, this suit for specific performance was filed.

The judgment resulting from this suit and now before us for review denied the appellant's right to specific performance on a finding of fact that the appellee was willing to convey the property on the agreed date for closing, but that the appellant did not have the necessary funds to close on that date.

The facts germane to this appeal show that only after three notices by the appellant that he was exercising his option to purchase and three attempts by the appellee to avoid the option or to make a new and different agreement, the appellee, through his attorney, on July 15, 1965, agreed to convey the property involved.

After some delay occasioned by exceptions to title, type of deed to be delivered, and obtaining a title insurance binder, a tentative closing date of November 4, 1965, was set.

By letter dated October 26, 1965, counsel for the appellee confirmed the November 4, 1965, closing date but conditioned the conveyance by the following modification:

'Mr. Odom is also requiring me to put in the deed that it be subject to the oral agreement he has with your father or, if not in the deed, in an agreement that you will agree to save him, J. D. Odom, harmless from any suits your father may institute against him because of the property sold to you.'

Two days later, by letter dated October 28, 1965, counsel for the appellee wrote the appellee as follows:

'I am advised that Mr. Bush, the representative of the United States, who is making the loan to Mr. Wilson, can not meet with us as agreed on November 4th. I have given them an alternative date of Monday, November 15th, at 2:00 o'clock p.m., in my office. I will assume this is agreeable to you unless I hear from you to the contrary.'

The appellee's response to this alternative date was, as shown below, an unequivocal refusal to close on any date. His letter to his attorney, dated November 1, 1965, and transmitted to the appellant by the attorney's letter of November 2 was as follows:

'This is to advise you that I feel I am no longer obligated to Mr. W. P. Wilson on his written lease option or to Mr. Ernest Wilson on our oral lease option.

'Please notify both by registered mail, sign receipt requested, their time is up, and if they are interested in negotiating a deal with me, they should contact me by Nov. 4th, 1965, as I have several different parties interested in leasing and buying this farm.'

It is our determination that the appellant has failed to meet his burden of demonstrating error by relying on the doctrine of anticipatory breach. His contention that the appellee's unequivocal refusal to...