97 Fla. 236 | Fla. | 1929
In this case the order appealed from should be affirmed on authority of the opinion in the case of International Realty Association, Inc., v. McAdoo, 87 Fla. 1, 99 So. R. 117, and it is so ordered.
This bill seeks to rescind and cancel a contract under which the complainant purchased certain lots, and to recover the initial cash payment, or have the property sold to enforce a vendee’s lien for that amount. There
It is not alleged that at the time these promises or representations were made the vendor had no intention of fulfilling them, and that they were falsely made with the intent to defraud and deceive the complainant. Roberts v. James, 83 N. J. L., 492, Ann. Cases 1914 B, 859, and note.
It also appears that the promises or representations were made orally at the time the complainant was induced to purchase the property, relying upon such promises, and were not contained in the contracts of sale as written and "executed.
There does not appear to be any allegation whatever as to a misrepresentation of any existing fact, as in Nixon v. Temple Terrace Estates, 121 So. R., 475.
The bill involves two sets of contracts in different subdivisions, made at different times, and one of them made with a different purchaser and assigned to complainant. Hence the bill is probably multifarious. After one set of contracts had been executed a letter was written by the
The doctrine of dependent covenants does not apply. A covenant must be in writing. See 15 C. J. 1209-1212, and Sun City Holding Co. v. Schoenfeld, decided at the present term.
As the letter was written several days after the contract was made, it did not, under the allegations of the bill as drawn, create a dependent covenant (15 C. J. 1221), or a dependent stipulation, the performance of which was a condition precedent to performance by the other party. 13 C. J. 567 et seq.
It appears, therefore, to be a bill to rescind a purchase of real estate merely because the vendor had breached his oral agreement' or represenations as to making future improvements, which agreement was not contained in the written contract and is not alleged to have been fraudulently made without' any intention to perform. Harrington v. Rutherford, 38 Fla., 321, 21 So. R., 283; Riverside Investment Co. v. Gibson, 67 Fla., 130, 64 So. R., 439; Glass v. Craig, 83 Fla., 408, 91 So. R., 332; 29 Am. & Eng. Encyc. Law, 654-655.
The allegations of the bill do not bring this case within the operation of Sun City Holding Co. v. Schoenfeld, supra, or Southern Colonization Co. v. Derfler, 73 Fla., 924, 75 So. R. 790, which cases deal with dependent covenants.
The complainant may have other remedies for relief, but .the allegations of the bill are not sufficient to entitle her to reeission and cancellation and sale of the property
The motion for reconsideration of the motion for rehearing is denied, and the judgment affirming the action of the court below in sustaining the demurrer to the bill will be allowed to stand, but with this modification — that the order dismissing the bill be amended so as to order such dismissal without prejudice.