Helvie v. Maimi Memorial Asso.

157 So. 661, 117 Fla. 281

• Court: Supreme Court of Florida
• Decided: November 17, 1934
• Status: Published

Opinion

Brown, J.

This was a bill filed by the appellants, for the rescission of a contract for the purchase, for speculative or investment purposes, of certain cemetery lots, on account of non-performance by the vendor of covenants to make improvements, and to recover the partial payments already made. The defendant filed a motion to dismiss the bill upon the ground that the facts alleged showed that the appellants had waived their right to rescind and had also been guilty of laches in the assertion of such right, if any. It appears that after the appellants became dissatisfied with the delay in the construction of the improvements some eighteen months after executing the contract instead of rescinding at that time, they made an agreement with defendant to resell the lots for their account at an advance in price, and then, when the defendant was not able to effect such resale, the appellants, some five years later, decided to rescind. The Chancellor sustained the motion to dismiss and from that order this appeal was taken. Whatever rights, if any, the appellants may be able to assert in defense of any action that might be brought against them to enforce the payment of the balance due on the purchase price, which is a question that is not now before us, we cannot say that the court below was in error in granting the motion to dismiss. It appears from the facts alleged in the bill that the motion wasi well founded. The order of dismissal will therefore be and the same is hereby affirmed.

Affirmed.

Whitfield, P. J., and Buford, J., concur. Davis, C. J., concurs in the opinion and judgment.