Sall v. Luxenberg

302 So. 2d 167, 1974 Fla. App. LEXIS 8398

Opinion

PER CURIAM.

Upon consideration of the briefs and oral argument and in particular upon review of the pertinent pleadings and other portions of the trial record before this court, we are of the opinion that the appellants have failed to demonstrate reversible error. Price v. Hernando Beach, Inc., Fla.App. 1973, 286 So.2d 279. Although we recognize as a general proposition that a party seeking to avoid a release must tender the return of whatever has been received in connection with the execution thereof, the state of the record is such as to preclude application of this principle at the present time; for example, the consideration for the release which would determine the amount of the tender is presently in dispute. 28 Fla.Jur., Release, sec. 30. At the proper stage of the proceedings below the appellants may, without prejudice, desire to pursue their defense by motion or otherwise.

Accordingly, the order denying appellants’ motion for stay of proceedings is affirmed and the cause remanded to the trial court.

Affirmed.

WALDEN and MAGER, JJ., and SMITH, CULVER, Associate Judge, concur.