71 Fla. 352 | Fla. | 1916
This case was tried by an attorney, as Judge Ad Litem, by agreement of the parties, the resident Circuit Judge being disqualified. There was judgment for the plaintiff and the defendants took writ of error.
The plaintiff’s supposed cause of action arose as follows : Mrs.-Otstott and her husband entered into a contract to sell Merryman and his wife a lot in Miami upon
Merryman proceeded at once to place upon the public records the contract of sale, and even at the trial disclaimed a willingness 'to accept the-sum agreed upon as a settlement of his rights under the contract. It is not clear that he surrendered possession of the lot.
We think the court erred in giving him judgment for this amount. It is beyond question that the agreement to pay that or any amount was expressly conditioned upon the two Merrymans surrendering all their rights whatever they might be, under the contract of sale. We do not know Mrs. Merryman’s attitude in the matter, as she is not before us, but Merryman at the trial testified, “I am not willing at this time upon payment to me of the amount promised to give the Otstotts a quit-claim deed in the nature of the receipt as they requested. I am not willing at this time to surrender if they paid me.” He was willing to do this only upon the payment of what he conceived to be his equities under the contract of sale, but this action is not upon that contract nor is its solution before us.
The judgment is reversed.