75-425 | Fla. Dist. Ct. App. | Jan 13, 1976
PERSHING INDUSTRIES, INC., a Florida Corporation, Appellant,
v.
Lawrence SHUPNICK and Albert Wilensky, Appellees.
District Court of Appeal of Florida, Third District.
*411 Janice Revitz, Miami, for appellant.
Michael A. Pelle, Ginsberg & Goldman, North Miami Beach, for appellees.
Before PEARSON, HENDRY and HAVERFIELD, JJ.
PER CURIAM.
The issue presented on this appeal is: Is a contract for the purchase of stock in a corporation subject to the equitable remedy of rescission when the contract provides that the sale price of the stock shall be determined by a particular method and when that method is not capable of performance. The trial court held that the provision for the ascertainment of the purchase price was a dependent covenant and that by its impossibility of performance the contract was subject to rescission. Cf. Shore Inv. Co. v. Hotel Trinidad, 1947, 158 Fla. 682" court="Fla." date_filed="1947-04-01" href="https://app.midpage.ai/document/shore-investment-co-v-hotel-trinidad-inc-3380324?utm_source=webapp" opinion_id="3380324">158 Fla. 682, 29 So. 2d 696; and Enid Corporation v. Mills, Fla. App. 1958, 101 So. 2d 906" court="Fla. Dist. Ct. App." date_filed="1958-03-13" href="https://app.midpage.ai/document/enid-corporation-v-mills-1730243?utm_source=webapp" opinion_id="1730243">101 So. 2d 906. We agree with the conclusion reached, and find that "[a]s in the case of specific performance, relief by way of cancellation lies within the sound discretion of the court, to be exercised according to what is reasonable and proper under the circumstances of each particular case ..." International Realty Associates, Inc. v. McAdoo, 1924, 87 Fla. 1" court="Fla." date_filed="1924-01-10" href="https://app.midpage.ai/document/international-realty-associates-inc-v-mcadoo-4921474?utm_source=webapp" opinion_id="4921474">87 Fla. 1, 99 So. 117. Additionally, "[w]e have no clear conviction that the construction so placed on the contract by the lower court is erroneous. There is a presumption that it is correct." Clark v. Clark, Fla. 1955, 79 So. 2d 426" court="Fla." date_filed="1955-03-23" href="https://app.midpage.ai/document/clark-v-clark-1787920?utm_source=webapp" opinion_id="1787920">79 So. 2d 426.
The appellant has also presented a point directed to the denial of certain of its motions and points directed to procedural rulings. None of them presents reversible error on this record.
Affirmed.