Contractors Construction Corp. v. Michael Development Corp.

213 So. 2d 430, 1968 Fla. App. LEXIS 5130

• Court: District Court of Appeal of Florida
• Decided: July 31, 1968
• Docket: No. 1661
• Status: Published

Opinions

PER CURIAM.

This is an appeal by the defendants who seek relief from a final judgment of foreclosure of a purchase money mortgage covering certain real estate in Broward County, Florida.

The defendants were in substantial default in performance. Installments on the debt were past due. Other mortgage obligations went unperformed.

As to the contention of the defendant, Joseph Cohen, that there was a total lack or failure of consideration for the execution and delivery of the subordination agreement by the defendant, Joseph Cohen, it is not supportable either by the facts or the law.

FIRST: there was consideration for the subordination agreement, viz the forbearance to foreclose' the second mortgage. To say that such forbearance was not bargained for by the defendant, Joseph Cohen, begs the question, for the very act by him of signing the subordination agreement is an implied request for such forbearance on his part, in light of his having been put on notice prior to his signing that if he did not do so the mortgage would be foreclosed.

SECOND: there was no failure of con-' sideration for there was actual forbearance until such time as the other defendants defaulted in the mortgage obligations beyond the extended patience of the plaintiff.

The record and briefs have been carefully considered, and no reversible error is found.

The judgment appealed from is affirmed.

Affirmed.

WALDEN, C. J., and MELVIN, WOODROW M., Associate Judge, concur. CROSS, J., concurs, in part, and dissents, in part, with opinion.