Sharp v. Machry

488 So. 2d 133, 11 Fla. L. Weekly 1101, 1986 Fla. App. LEXIS 7747
CourtDistrict Court of Appeal of Florida
DecidedMay 7, 1986
DocketNo. 85-1867
StatusPublished
Cited by3 cases

This text of 488 So. 2d 133 (Sharp v. Machry) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sharp v. Machry, 488 So. 2d 133, 11 Fla. L. Weekly 1101, 1986 Fla. App. LEXIS 7747 (Fla. Ct. App. 1986).

Opinion

GRIMES, Acting Chief Judge.

This is an appeal from a judgment dismissing a suit for foreclosure “without prejudice to filing a new action upon conclusion of a reasonable time.”

On December 22, 1980, Machry and Ra-maker entered into a joint venture agreement for the development and sale of condominiums on land to be conveyed by Ma-chry to Ramaker and on adjoining land already owned by Ramaker. Ramaker would manage the joint venture and Ma-chry would receive twenty-five per cent of the profits. On the same date, Machry contracted to sell his property to Ramaker with the sale to be closed on August 1, 1981. The contract provided that Ramaker would give Machry a noninterest bearing promissory note, secured by a purchase money mortgage which could be subordinated to an institutional construction loan. The note was to be payable in increments upon the sale of the condominium units, but in any event, “not later than twelve (12) months following the date of said note and mortgage.” Late in December of 1980, Machry and Ramaker met with Sharp, as the authorized representative of Kronos Corporation, with a view toward obtaining the funds to be used to pay off a contract for deed under which Machry was buying the land to be conveyed to Ramaker. As a consequence, Kronos loaned Ma-chry $157,678.00 pursuant to a promissory note due on August 1, 1981, which was secured by a collateral assignment of Ma-chry’s interest in the land.

The contemplated sale closed on or about August 1, 1981, with the property being conveyed to San Terra Development, a partnership consisting of Ramaker and Stauffacher. San Terra gave Machry a promissory note for $270,057.60, secured by a mortgage on the land. The note was payable as specified in the sales contract except for the twelve-month provision which was changed to read that “in any event, payment in full of any amount still unpaid on this note shall be paid on or before one year from the date of the first construction draw pursuant to a construction loan closed to construct all or part of the above referenced condominium units.” Machry did not pay his note to Kronos when it was due. Nevertheless, Kronos released its interest in the prior Machry collateral assignment and received in lieu thereof an assignment from Machry of the San Terra note and mortgage.

Thereafter, Kronos assigned its rights in the transaction to Sharp. When Machry’s note remained unpaid, Sharp looked to the collateral security. However, the proposed condominiums were never constructed and the San Terra note was also unpaid. Sharp then brought suit on January 17, 1983, to foreclose the San Terra mortgage as the collateral security for Machry’s unpaid note.

At trial, the pivotal question was whether the San Terra note and mortgage were in default because there had never been a construction draw. Sharp contended that in representing Kronos he had relied upon the language of the sales contract which called for the note and mortgage to be payable within one year from execution. He testified that he did not realize that the due date on the note and mortgage as executed had been changed to provide for payment within one year of the first construction draw. Ramaker testified that the provision for repayment within one year was mistakenly placed into the original sales contract and that he caused it to be corrected when the note and mortgage to [135]*135Machry were later executed. He said he knew how long it would take him to complete the development once he started construction, but he did not have total control over when a construction loan would be forthcoming. He felt that he needed to allow time to make some preconstruction sales, which are usually required by prospective lenders. In any event, in their opening statements, the attorneys for both sides argued that applicable law required that the San Terra note be construed as one without a due date and therefore payable within a reasonable time. After hearing the evidence, the court ruled that a reasonable time had not yet passed and dismissed the action.

On appeal, Sharp argues that by May 8, 1985, the date of the trial, more than a reasonable time had elapsed since August 1, 1981, for the San Terra note to become due and payable. In addition to supporting the trial judge’s conclusion that a reasonable time had not yet expired, appellees now also argue that the note should be interpreted to mean that the construction draw was a condition precedent to liability as in Ballas v. Lake Weir Light & Water Co., 100 Fla. 913, 130 So. 421 (1930). In that case the supreme court approved a quotation from 13 C.J. 631-632 which provides:

“A contract or promise to pay may be restricted to a particular fund, so as to make the raising or the sufficiency of the fund a condition precedent to the liability, and in such case the promise cannot be enforced until the fund is realized, unless the failure to realize or collect the fund from which payment is made is due to the neglect, or to the unreasonable refusal to act, of the promisor, or is otherwise attributable to him.”

100 Fla. at 929, 130 So. at 427. See also Marina Apts., Inc. v. Bloch, 128 So.2d 615 (Fla.3d DCA 1961).

Thus, the initial question we must decide is whether the existence of a construction draw was a condition precedent to liability. In this regard, the following statement from 17 Am.Jur.2d Contracts section 339 (1964) appears to be pertinent:

The real significance of the provision that the instrument is payable upon the happening of an event that is wholly or partially within the control of the promis- or is apparent after it has been determined whether the debt is an absolute one. If the instrument, read in the light of the surrounding circumstances, shows that the debt is an absolute one, it is reasonable to suppose that the parties intended that a reasonable effort should be made to cause the event to happen within a reasonable time. Some courts declare broadly that where payment is to be made upon a condition under the control of the promisor, an action may be brought within a reasonable time. Moreover, where a debt is due and the happening of a future event is fixed on merely as a convenient time for payment, but the future event does not happen as contemplated, the law implies a promise to pay within a reasonable time. [Footnotes omitted.]

In Peacock Construction Co. v. Modern Air Conditioning, Inc., 353 So.2d 840 (Fla.1977), two subcontractors sued the contractor to recover for work done on a condominium project. The contractor had not received from the owner full payment for the subcontractors’ work. In refusing to pay the subcontractors, it relied upon a provision in the subcontracts which provided that the contractor would make final payment to the subcontractor

[Wjithin 30 days after the completion of the work included in this sub-contract, written acceptance by the Architect and full payment therefor by the Owner.

The court rejected the contention that this provision constituted a condition precedent to the contractor’s liability. The court construed the language to constitute an absolute promise to pay which was merely postponed for a reasonable time after completion of the subcontractors’ work and the request for payment. See Gulf Construction Co. v. Self, 676 S.W.2d 624 (Tex.App.1984), which reached the same result in the [136]

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Bluebook (online)
488 So. 2d 133, 11 Fla. L. Weekly 1101, 1986 Fla. App. LEXIS 7747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sharp-v-machry-fladistctapp-1986.