Holltorf v. Walker

121 So. 553, 97 Fla. 508

• Court: Supreme Court of Florida
• Decided: April 9, 1929
• Status: Published

Opinions

Buford, J.

This was a suit by the proposed vendee against the proposed vendor for the specific performance of a written contract to sell real estate. The contract relied upon 'was as follows:

I, William Holltorf, widower, do hereby acknowledge the receipt from Howard Walker, of the sum of $50.00 as earnest money to apply upon the purchase of the following property situated in Hillsborough County, Florida, and described as follows:

The N. W. 14 of the N. W. % of Section 36, Township 29 South Range 19 East,

which I hereby agree to sell and convey to the said Howard Walker upon the following terms, to-wit:

The purchase price is to be $3,300.00, payable $750.00 cash toward which said $50.00 is to apply, the balance to be secured by a mortgage payable in equal installments, one, two and three years after date, with interest on deferred payments at 8 per cent per annum, payable semi-annually, I agree to convey said property by good and sufficient warranty deed, and to furnish an abstract showing a good, salable and merchantable title within seven days after the date hereof, and the said Howard Walker is to have 15 days after the date of the furnishing of said abstract in which to have said abstract examined by his attorney. If said abstract shows good title as aforesaid, and the said Howard Walker refuses to accept said property upon said terms, the said $50.00 is to be forfeited to me, but if said title be found not to be salable and merchantable, or if I fail to make delivery of said property as agreed, I hereby agree to return said $50.00.

IN WITNESS WHEREOF, I have set my hand and seal this 15th day of January, A. D. 1925.

WM. HOLLTORF (Seal)

ALBERT OVERSTREET (Witness)

H. P. BARTON (Witness)

An answer was filed in which was incorporated' a de murrer. The demurrer was overruled on final hearing and decree was entered in favor of the complainant.

The demurrer should have been sustained. The contract itself fixes the liability to be applied in the event that either party breaches the contract. See contract, supra.

Aside from the fact that the contract itself provided for the liability to be applied to either party in case of breach of the contract, the contract is unilateral and under it specific performance could not have been enforced against the proposed vendee and, therefore, the contract lacks that mutuality which is essential in cases to support decrees of specific performance. The decree should be reversed and it is so ordered.

Reversed.

Terrell, C. J., and Whitfield, J., concur; Brown, J., concurs specially. Ellis and Strum, J. J., dissent.