Duval Investment Co. v. Stockton

| Fla. | Jun 15, 1907

Whitfield, J.,

(after stating the facts.) — It is contended “that the first count of the declaration does not sufficiently allege the agency of W. S. Jordan, or his right to bind the defendant by any covenant or warranty to deliver.” No specific ground of demurrer is directed to this point. The first count of the declaration alleges that “by an instrument in writing signed by W. S. Jordan, agent, of said defendant, who was thereto' duly authorized, the said defendant entered into an agreement with the plaintiff to sell and deliver to him” certain real estate.

The defendant being a corporation acts only by agents and the allegation of the name and particular authority of the agent is not in general essential. In this case the allegation is that the defendant entered into the agreement. It was not necessary to name the agent, but having- been named it is sufficient to allege that such agent “was thereto duly authorized.” Childress v. Emory, 8 Wheat. (U. S.) 642; Nicholson v. Croft, 2 Burrow’s Rep. 1188; 16 Ency. Pl. &. Pr. 900. See also Bowen, Admr., v. Jacksonville Elec. Co., 51 Fla. 152" court="Fla." date_filed="1906-01-15" href="https://app.midpage.ai/document/bowden-v-jacksonville-electric-co-4916620?utm_source=webapp" opinion_id="4916620">51 Fla. 152, 41 South. Rep. 400.

The contention that the first count of the declaration is defective because there is no allegation of the tender, of the $300.00 due upon delivery of deeds and a demand for deeds cannot be sustained. The allegations are that the defendant agreed to sell and deliver to plaintiff certain described land for $100.00 cash down,- $300.00 on delivery of deeds, and $2,500.00 in three years; that the $100.00 was paid; that plaintiff resold the land at a profit; that defendant well knew that plaintiff purchased to resell; that defendant has failed and refused to deliver the land and informed plaintiff’s vendee that it could not deliver a portion of the land, and defendant kept the cash payment made by plaintiff; and that plaintiff lost the definite profitable sale he was to make. These allegations are admitted by the demurrer. The agreement was to deliver the land on payment of $100.00; the $300.00 was to be paid on delivery of deeds. The first payment was received and retained by defendant' who failed and refused to deliver the land, and informed plaintiff’s vendee that it could not deliver a portion of the land. Under these circumstances it was not necessary to allege a tender of the second payment or a demand for deeds. If a tender of the second payment and a demand for deeds were ordinarily essential the notice that defendant could not deliver a portion of the lands as agreed and had failed and refused to deliver them, dispensed with tender and demand, and gave the plaintiff a right to bring his action for damages. See Sullivan v. McMillan, 26 Fla. 543" court="Fla." date_filed="1890-06-15" href="https://app.midpage.ai/document/sullivan-v-mcmillan-4914311?utm_source=webapp" opinion_id="4914311">26 Fla. 543, 8 South. Rep. 450; 4 Ency. Pl. & Pr. 630.

It is urged that it was essential to allege that the time for delivery had arrived and a tender of the second payment. The agreement is alleged to have been entered into July 6, 1905. The declaration was filed August 24th, 1905. Since the agreement was to deliver the land on. payment of the $100.00, and the $100.00 was paid and retained, and defendant failed and refused to deliver the land and informed plaintiff’s vendee that it could not deliver a portion of the land, it is not necessary to allege that the time for a delivery had arrived, or to allege a tender of the $300.00 and a -demand for deeds. The declaration shows by necessary inference that the time for delivery of the land had passed. The failure to deliver the land as agreed is the breach complained of.

The first count of the declaration is good at least as against the specifications of the demurrer as interposed.

As the verdict does not indicate which count the finding is predicated upon, and as the first count is good as against the demurrer it is not necessary to consider the second count.

The judgment is affirmed.

Shackleford, C. J., and Cockrell, J., concur;

Taylor, Hocker and Parkhill, JJ.j concur in the opinion.