*1 1097 grant court would said motion asked non-suit take ’’ granted. the same was any record disposition The fails to show further judgment matter. It non-suit, contains no does it nor contain dismissing order the cause. plaintiff hearing
The mere recitation that “the that the grant motion, court would said asked take a non-suit granted” proper the same was contained in the record exceptions the bill not a sufficient order judgment the basis for writ of error as con- constitute templated provisions under the of Section Revised General Statutes of Florida. Writ of Error is dismissed. J., J., P. J.
Whitfield, and Terrell and Buford, concur. Corporation Existing Company, Un- Lumber
Webster Florida, Appellant, v. der State Laws Widow, Appellee. Lincoln, E. Mrs. Jennie Opinion December 1927. Filed *3 O’Farrell, Appellant; for & Murrell Appellee. Vining Ward, & Stapp, Campbell,"Circuit Judge: below, sus- appeal from a decree of the court in an
This complaint, dismissing a bill of taining a demurrer to and sought spe- complainant, to have appellant, as wherein respondent, of an by appellee, as performance cific convey real estate. alleged to sell and contract complain- controversy described, and the land in bill forth alleged contract is set of the ant’s version as follows: complaint of was, time Lincoln at the E.
“That the said Jennie com- between to was made referred hereinafter contract is, owner-of the-fol- defendant, .and now the plainant in Dade and.-lying estate, situate lowing described real' County, of Florida. State 'according to (3) (3) of Block Plat-of Three
“Lot Three. portion Gardens,’ ‘Little River a subdivision of Quarter (SE14) (7), Township Southeast Section Seven Fifty-three (53) Range Forty-two (42) East, South page recorded Plat Book 44 of 6 at the Public Records Dade County, Florida.
“Complainant represents further on or about the ..........day of June, 1924, said Webster Lumber Com- pany, by agent, duly its Harvey, P. thereunto M. author- ized, entered into a defendant, contract with the E. Jennie by Lincoln, provisions the terms and of which the said de- fendant, for named, agreed the consideration hereinafter to sell, by and, proper convey deed complainant, real estate above described, said deed executed and deliv- ered complainant, defendant day or about the first of October, 1924; agreed and also complainant to deliver to an abstract of the above property, showing described said property liens; to be of all free that as a consideration of conveyance it, said complainant, said said agreed pay contract to the defendant, .said *4 Forty-five ($4,500.00) sum of Hundred Dollars. One ($100.00) paid Hundred Dollars thereof be in cash, said given by Harvey payment agent to be said M. P. for com- plainant bargain; ($1400.00) to bind the Fourteen Hundred delivery Dollars at the time of the execution of the and. deed, and the balance of Three ($3,000.00) Thousand Dol- by paid lars and secured notes and a mortgage first estate, payable equal in installments, said'real four one note in the sum of due to be in six months from $750.00 the date delivery deed, and execution and one note in the sum months, twelve eigh- $750.00 one note $750.00 months twenty-four teen and one note for $750.00 deed, from months the date of said each of said *5 you party your advise that this who is interested in place wanting a residence, is not it for but for pur- business already poses. facing Everglade He has secured a lot you (which remember Cortright Mrs. Avenue next to words, in it is your ; other place) east of a little back and yard; of the old lumber Everglade- Avenue north lot on the formerly used has secured the which was he also two lots your right you which know is yard, next as a lumber option, He has an and will place on east. also secured the buy, Mr. probability all house and lot owned Dye Mr. Wise’s Rogers has an offer on house, old and —the very give him take. place, probably which he will This will Everglade from Avenue place right down the railroad length, lots more than five hundred feet and two only width, yet he except Everglade, on where has as Everglade, him secured one. He has another offered on there; just does think he but but not would need one enough office, lay and down for his his business would back man is I received North, the railroad. This now the and asking you price all aget a wire from him I see and that on Sprowl get price also your see Mr. and place, on positively not place; he does know his he will want wide, his more than lots business two which would be yard, Rogers and Wise and the old lumber places, but your prices place and Sprowl place. he will consider it, if therefore, I will will appreciate advise me price may quote place I this first mail what himto at— carry your price commission please let to me. 5% doubt, have, quite “You no it annoying found to be so here, close to the railroad as are and with a business right going you, trucks, in next door where all kinds of etc., constantly filling would street your be in front of door, as well as the all day, part continuous noise night great really time, deal I believe it would your dispose place buy interest to of this further living out from railroad where would be a bit more pleasant. said, my As I have customer is not sure that he
1103 your right kind lot, care for but I believe with the would if he same, I him to take price it, of a on can induce you I to let him have' lot, think will do well will take this lays goes if he ahead and notion, for it while he is just the two lots plans buildings, etc., for his on out his yours hardly able to handle width, he would be hardly be suitable advantage time, at a later and it would have others any other as his business would for business they the railroad so that would not have cut oif from as he And with such a business advantage a sidetrack. there, certainly very going put it undesir- would be understand, for a I do not please, able home. You will say something contemplated mean to that the business is absolutely only questionable nature; right, of a it is all thing right live no one would care to side of. all, presume, I have house,
“You furniture may you would not want this disturbed be until come fall; if true, my in the this be I am sure back customer willing just be let the house remain would as it is as may September, as the first of be even late later than you get that, if cannot back here that time. You could your subject keeping sell, months, house several agreed upon you be length of time to between and the may purchaser. arrange It even be that he could to let you occupy season, you the house all of next could you him go it over to when want to turn back North next buys, if he thing is, buy The main he will spring. want to away, exactly lay right so he will know how to out his purchaser building's. I am sure the willing would be you ample get time to here and give secure another desir- your moving place before able .furniture. ‘ ‘ glad your reply, I will be In to name the terms like for which would the sale to made, and as *7 name that carries the usual price also suggested, please agent. me as commission 5% very pleased much to make this "Frankly, I shall be merely the commission to me—but you for for sale —not regret I one to fact that should because you would be here with this life, in their home as crowded position, have a going you, and not be business you if your course, have the place. Of chance, to sell have, simply not want chance, I now do as believe changes matter, and I would not think of sell, you. sale on trying push reply. have an immediate let me "Please very truly, "Yours ‘‘ ’J (Signed) M. P. HARVEY. "B” EXHIBIT Mass., May "Sutton, 3, 1924. Harvey, M. P. "Mr. River, Fla.
Little
"Dear Sir: morning, stating probably your letters this
"Rec’d Mooney property on E. Ave. for our purchaser had $5,000 (Five say sell for we would reply would "In Thousand) Dollars. have to make some furniture we would
"Now about you suggested. purchaser with arrangement necessary regard same, to wire us it you find "If Worcester, Mass., care of Millbury, Mass., or towire send Stockwell, Sutton. Tyler Lincoln,
"Mrs. Jennie E. Mass, "Sutton, Route Box 105.” EXHIBIT “C” 18, 1924 “June Lincoln, “Mrs. E. Jennie
Sutton, Mass.
‘‘ Dear Mrs. Lincoln:
“With your further reference to house and lot on East Mooney Avenue, near railroad:
“I took this up my matter North, with customer *8 ago, sometime and at he appear time did not to care place, for your especially and price you at the named. The matter did think appeal not him much, to so as he did not he would need this additional lot.
“The customer I had in mind is Mr. Webster—the Web- ster Lumber bought my Co. who yard out lumber here. Mr. Webster has been in early the North spring, since and has just returned days, few and I had a talk with him to- day, and subject went into him this again, with trying to show how that your he could good use lot to advantage —if right not away, it would later, come well as the business grew.
“Mr. Webster has closed for lot next to railroad facing Everglade Ave. He has also closed for two lots your between place and the railroad, formerly used for yard. lumber Then he has Dye closed for the Wiese and places next to Mooney railroad on South Side of Ave.'—-in words, places other the two Sprowl between the home and the railroad. It plan is Mr. Webster’s to move the lumber yard present from location, its Highway, on the to above lots. ‘‘ your will place quite This make uninviting for a home. Sprowl’s knowing of this have been to get see me to me to all get do I can to place deal, their on this and Mr. Webster has instructed also, me to close for this which I presume deal will be closed tomorrow. At the same time your place Mr. stated to me Webster, I talked to he you $4500.00, your price that if would make for me to close you carry price, understand for this also. This to 5% me, pay price pay as he would not this then commission to me the commission. yard moving
“Mr. the lumber Webster does not intend you coming year, agreed keep has before the he let say you sell, place, as, in the event as late desire you April give 1925. would use of the house 1st, This through season, you would not have to move next all ready coming your you get go back the furniture until property at spring. $4500.00 Mr. Webster will take the years, cash balance one and two on terms of one-third equal payments, payments bear interest at deferred 8%. ‘‘ you In view of fact that cannot turn over fall, Webster, prob- and will to Mr. until return suggest ably season, house next I would that a want to use way give us to good handle same would be for amount, good faith, to show say $100.00 check for small *9 payment binder, a balance of full cash to be and to act as you given payments, on date made, and notes for deferred you ready Webster, provided Mr. turn house over to are to abstract, him with clear title position deliver to are in understanding This, course, with the property. to said him not later than turned over to that is to be April 1, 1925. week, days, within a Webster, leaving
“Mr. in a is few summer; again, gone of the for the North to be balance mountains, for days I, leaving about ten for also am while I to close this couple months. think it advisable a taking the agreeable to here, Mr. and while he is Webster my attaching check for I am property, and for this reason attaching receipt am deal; as a binder on the also $100.00 you accept me, event you sign and return to proposition you as outlined. I would ask that wire also immediately you receipt letter, accept- me on if of this are ing offer, may get up so I both the deal closed before we get away for the summer. you slight changes
“In event that are would there some make, your requirements would like to which meet better you than outlined, might suggest changes, those may may you agreeable Webster; it be with Mr. it be payments quarter- would rather have the deferred made payments annual, change that ly rather than or some other might us, not matter much suit so and would better. ‘‘ you glad If property, owe a balance on the we would be arrange payments our as to so enable to take care yours. reply, get let an I may
“Please me have immediate so all this closed while we are here. very truly,
“Yours Harvey. (Signed) “M. P. agreement enclosed; “Be sure to have two witnesses Notary state when his also sure to have commission ex- ’’ absolutely pires ; this is in Florida. necessary
EXHIBIT “D” Harvey “Received of M. P. dollars one hundred ($100.00) payment following initial described property: (3) (3) according^to
Lot Block Three the Plat Three Gardens, portion River of Little subdivision of South, Fifty-three Seven, Township 1-4 S. E. of Section Forty-two East, 6, page Book Range as recorded Plat County, Florida. public records of Dade *10 Harvey, agree assigns, “I to deliver to said M. P. or his liens, covering abstract, deed free all above de- with property, Harvey, at which time said M. P. his scribed pay ($1400.00) assigns, is to me Fourteen Hundred dollars already ($100.00) in addition to one hundred dollars Fifteen above; give and is two notes for paid, as me ($1500.00) each, bearing interest from hundred dollars both annum; making payment for given per total date at 8% forty-five dollars property hundred described above ($4500.00). M. P. agreed pay that I am to is understood and
“It sale, viz. Harvey on total amount of a commission of 5% closing of paid at time of $4500.00, said commission to be to be Total amount of commission deal as above outlined. paid $225.00. that transfer is not to be agreed
“It and is understood retain 1924, if I and should desire made before Oct. may so, season, I do during next winter use of house assigns, on or Harvey, M. P. or his deliver same to and 1, 1925. April about “ I to use agreed that should desire It is understood I am to do so with- April 1, until that property said until have use of the house charges, and if I should rent out Harvey not interest pay M. P. is that time that said until purchase price, such time as balance of on assigns. him, or his delivered I am all agreed to remove “It is understood lot, described but located above furniture from house are included sale improvements on said lot that all outlined. above .................... and delivered
“(cid:127)Signed, sealed presence of: day of before me this sworn “Subscribed ...................., 1924.
. .N. P. expires “My commission *11 1109 “E” EXHIBIT “Sutton, Mass. June 1924 Harvey, M. P. “Mr. River, Fla.
Little
“Dear Sir: just received.
“Your letter “With, Mooney our house and on East reference to lot satisfactory railroad, say price Ave., near will will ($4,500.00). mortgage property, on the as we we would want a
“But notes; would rather have the deferred do not care take payments, quarterly made in or semi-annual payments annual. rather than mortgage. cash rather than prefer
“But would take could balance on the so property, do not owe “We when the give liens, abstract with deed free all $4,500.00 payed is in full. would agreement satisfactory,
“The we rest coming season. want to live the house the un- your ($100.00) check hold one hundred-dollar “Will you again, to know are to do. til we hear from what we very truly,
“Yours E. LINCOLN.'» (Signed) “MRS. JENNIE EXHIBIT “F.” 28, 1924.
“June Lincoln, “Mrs. Jennie
Sutton, Mass.
“Dear Mrs. Lincoln: me, in which 24th is before
“Your letter certain asking for here, but accept your property offer *12 agreeable to reply, In it will be changes agreement. in the deferred, per payments, as semi-annual change payments to your suggestion. mortgage to you prefer
“Regarding your that statement my proposition submitted intention, in the notes. It was words, you mortgage. In other you, give to that we should prop- you give deed to handling would be: manner of the covering you mortgage erty, purchaser give to back a first selling, notes attached to you the are with same from mortgage. note would fall due six months the One months, one in one property, date of transfer of twelve months, twenty-four months, the eighteen and other the by you upon of note. mortgage payment be last to cancelled necessary “By way, the be for us to have abstract it will have, may know, or our attor- brought down to date so we ney the title pass upon title before we would know whether Mooney is clear I can an abstract from Mr. or not. borrow years ago, covering property up to two or three and the very date; much, brought up have it from that it won’t cost necessary customary I to have this done. it is and also charge, presume agreeable pay it will to to this small cus- is, course, ask that advise me as to this. of It tomary charge. for seller to stand this your may copy agreement,
“You attach this letter to using covering part same, suggested changes. it as the truly,
“Yours (Signed) “M. P. HARVEY.” alleged complaint It is further in the bill of the com- plainant was, entering alleged -at time of con- the into the been, ready, willing tract and had ever since able and carry upon part; respond- out the contract its but that the had perform upon ent failed and refused contract part, although requested her complainant. to do so
lili grounds up several set the demurrer to the There are First, question being: bill of of all complaint, effect sufficiency allegations complaint, bill of of the including binding attached, the exhibits to show a and sub- part sisting contract, upqn respondent, of the to sell the complainant; second, lands described therein to the sufficiency question allegations of com- the bill plaint contract, binding upon estate, to show a the real *13 support specific performance. an action for hearing
At demurrer, this the chancellor an the made which, order or excluding preliminary decree the and con- cluding statements, is as follows: Ordered,
“It Adjudged and Decreed that said the de- murrer of the hereby defendant be and the same is sus- tained; appearing and it court the that the exhibits complainant’s complaint attached to bill of do not show a subsisting parties valid contract between the for the sale of property, said therefore, Ordered,
“It is Adjudged further and Decreed complainant’s complaint that bill of be and the same is ’’ hereby of complaintant. dismissed at cost only assigned The error here is the rendition of the above by decree the court below. wording decree,
It will be seen from the of the the that demurrer complaint to the bill of was sustained and bill the dismissed, upon theory the that exhibits, the which were attached to and parts same, made of the constituting as the contract parties, valid, between the did not show a subsist- ing parties between the contract for sale of prop- the the erty. it, may
As we the case view be determined this Court by following question: the answer to allega- the “Do the of the bill of complaint, tions and the exhibits thereto parts attached and thereof, made forth valid, set subsist- 1112
ing complainant respondent, contract between'the and the by purchase complainant by for the the the sale the respondent of land the described therein?” portion complaint quoted bill gives the above complainant’s the meaning contention as to the-terms and alleged parties, through contract entered into the correspondence attached the bill as If exhibits. correspondence upon parts relied and made of the bill meeting minds, reveal such a as contended complainant interpretation its thereof quoted above, allegations exhibits, then bill and its as a whole, valid, subsisting would show contract. complete
This Court has held may that a contract be gathered letters, writings from and telegrams, between the parties subject contract, relating to matter of the they may fairly so connected with each other said paper. Briggs to constitute one al., 487, Meek v. et 80 Fla. 86 Rep. 271; Gray, South. Tucker v. 90 Fla. South. Rep. 158; Gautier v. Bradway, Rep. 87 Fla. 99 South. *14 879; Simons v. Tobin, 321, Rep. 89 104 Fla. South. 583.
We must look to correspondence, the alleged which it is in the bill contract, contains the to determine whether or not binding there was a contract complainant between the respondent and the purchase for the and sale the land described. appellee contends correspondence that the does not
give a description land, sufficient of the which com plainant agreed sold, claims was to be and that for this rea son the decree of the proper. court below was As to this contention, are of the opinion general we descrip tion contained in the particular tract, letters shows a as dis tinguished from others in the minds parties, of the in these negotiations, and under our holding the case of Lente v. . Clark, 22 515, Fla 1 Rep. 149, South. and Simons v. Tobin,
1113 supra, description correspondence in the was sufficient. shall, determine whether the therefore, We undertake to only- contract, correspondence á or does it reveal shows parties, prop- for the sale of the negotiations between the to, by respondent to the com- erty referred therein plainant. have contract, parties must
In there be order that intention, both, common a definite and distinct alike, Until all understand without doubt or difference. Both assent, and therefore no contract. there can be no sense, thing in parties to the same the same must assent J., 13 minds must meet as to all the terms. C. their 54 263-264; Strong Baars, 60 Fla. pp. etc. Co. v. Rep. 92; Savage, South. v. 66 Fla. 63 Ross South. Rep. 118. Strong Baars, supra, we said:
In case etc. Co. v. “In order to create a contract it is essential that there reciprocal prop- assent to a and definite should be certain open long matters are left osition, and so essential consideration, complete, for further not contract is thing at parties the minds of the must assent to the same ’ ’ same time. negotiations leading up to the execu- preliminary “The contract distinguished from the tion of a contract must be meeting parties minds of the itself. There is no an they merely negotiating as to the terms of while are agreement final, the agreement entered into. To be to be parties intend to must all the terms which the extend to J., p. 289, par. 100; Cooper- Ocala introduce,” etc. C. 390, 52 age Cooperage Co., v. Florida 59 Fla. South. Co. Rep. 13. *15 pur- passed proposed
The first letter that relative the Harvey, by property, chase of the was one written M. P. representing In it therein himself to be a real estate man. respondent writing regard
he tells the “in to the that he is River; house which all have here Little the one ’’ Mooney Avenue, East and which in while here. lived In this letter he respondent prob- advises the that he can ably property sell this party not whose name he did mention, and asks the respondent price to name a on the property and her terms, sell, asking if that she would also price the named include for him. This commission 5% letter merely was inquiry beginning letter of of the —the negotiations for purchase property. of the May 3, 1924, Lincoln, respondent, replied On Mrs. $5,000.00 for Harvey, quoting price the letter of him a place. it is nothing terms, She said and therefore presumed that she intended it to be a cash transaction. This part $5,000.00 letter was an for upon offer her to sell cash.' Harvey Lincoln, in which wrote Mrs.
On June pur- for party he had mind her he advised Webster “Mr. Webster —the was property of the chase his advising her in this letter that After Co.” Lumber in- appear to be Co., did not Lumber Webster purchaser, price quoted property at the of the purchase terested considerably going May 3, 1924, and by in her letter of her this why a sale as to reasons into detail advantage, he her that he advises to her party would be prop- to offer for the Lumber Co. Webster authorized cash, in one and two balance erty $4,500.00, “one-third interest payments to bear years, equal payments, deferred He commission of price to include his at 8%,” 5%. —The plan which the letter to detail a then undertook until not later than respondent might occupy the house $100.00, personal 1, 1925, enclosed his check April faith, binder, good show and act which he said was “to given and notes payment balance of full cash to made *16 ready on are to turn over payments for deferred date provided you Webster, position Mr. to de- house to are property.” him with clear title to said liver to abstract appears he also enclosed a form of letter, In this it $100.00, proposition for which contained the receipt if ac- asking the offer was him, respondent, outlined him; request- to receipt return also cepted, sign to immediately, accepted him if she ing that she wire “ ” receipt forth Exhibit is set C offer. form complaint. the bill Mrs. Lincoln to sell for
The letter the offer of declined $5,000.00 counter-offer, proposi- cash, and contains 24, 1924, replies Lincoln to this letter tion. On Mrs. June “Your and the offer contained as follows: letter therein just received, and lot on East with reference to our house say Mooney Will will be satis- price Ave. near railroad. factory mortgage ($4,500.00). But want a on we would notes, rather property, as we do not care to take would payments quarterly have the made or semi- deferred payments prefer annual rather annual. cash than But mortgage. rather than do balance take We not owe the property, give you so could abstract with deed free $4,500.00 payed in full. The rest liens, of all when satisfactory as we want to live agreement is would your coming Will one hun- house season. hold in the you again we from ($100.00) until hear dred dollar check we are do.” to know what Harvey Lincoln, P.
In a letter from Mrs. dated M. says in “Your the 24th 28, 1924, part: letter of June he your accept offer for me, is before which agreement.” asking changes certain He here, agreeable change says pay- it the deferred then will be payments per your “as from annual to semi-annual ments it suggestion.” He further said that was the intention *17 1116
give mortgage payments. the secure deferred Refers necessity also the having abstract of the brought date, down to presumed and that he she would do this at her cost.
Mrs. Lincoln reply made no to this letter.
Was by the letter written Mrs. Lincoln on June an acceptance of by the offer complainant’s made her agent in his 18,1924 letter of June ? We think not.
She said in that say letter: "Will price will be satis- factory ($4500.00).” But accept she declined to terms of payment, accept declined to pay- notes for deferred ments, stating she would payments want the deferred in semi-annual quarterly or annual, installments rather than preferred but the cash payments instead of deferred secured by mortgage. only complainant’s terms of proffer which acceptable were to her were those which fixed the price provided for occupancy her of the property dur- ing the winter 1924-1925, season of if agreement for sale perfected. She also was her letter said that she could deliver abstract of with title deed clear lien “when the paid (Italics $4500.00 is supplied) And also full.” stated that she would hold check until $100.00 she heard agent again from the “to know what (italics we are to do.” supplied) respondent appears
This letter of the to indicate that she payment cash, wanted and that expect she did not intend to furnish an abstract or execute and deliver a deed until payed $4500.00 "was in full.” said, weAs have never, appears she far as it from record, assented proposals changes to the agreement made complainant’s agent in his of June letter 28. 1927. acceptance of an offer, effectual,
An must be identi- cal with the offer and person unconditional. Where thing, offers to do a definite accepts and another condi-
1117 tionally acceptance, or introduces new term into the expression willingness his answer either a mere is proposal, counter in neither case there treat or it is a agreement p. 281, par. 86; Strong an J. or contract. C. Baars, supra. etc. Co. v. applicable acceptance offer and
“Under the rules generally, complete correspondence a contract is not *18 passed beyond until the have of communications the state preliminary negotiations. parties The minds of the must met, appear point in have and it must that at the cor- some by respondence proposal party was a there definite one unconditionally accepted by which 13 was the other.” C. p. 299, par. J. 114. by correspondence upon complainant relied the property
constitute a contract for it de- the sale to of the by scribed, respondent, not, in show opinion, the does our meeting parties make such of the minds of the as would valid, upon part respondent enforcible contract the of the complaint. to the There does not convey the appear point correspondence to have been a in reached the by proposal was a made one the where there definite unconditionally by parties accepted which was the other. merely parties negotiating as to terms “Where the are agreement them, an entered into between there is to be consequently meeting minds, the and no contract no agreement incomplete.” Cooperage the Co. while Ocala Cooperage Co., supra. v. Florida right in prescribe “The offerer has the his offer time, place, quantity, acceptance, conditions as to mode of may please him which it to insert and or other matters part thereof, acceptance, to make and the conclude respect correspond agreement, every meet must beyond falling going offer, neither short of with the exactly meeting points at all them proposed, but terms 1118 ” they p. just stand. C. J. closing with them as Baars, supra.
par. 82; Strong Co. v. etc. complaint, the allegations of the bill of According to the by the November, 1924, returned was, check $100.00 ap- was complainant, and agent respondent days by him; some retained accepted and parently acknowledged re- recognized, or its complainant later the alleges tendered, it it, when it as acceptance turn and payment as the cash respondent bill, $1500.00 property. on the sustaining in its decree did not err
The court below complaint. The dismissing bill of demurrer to and therefore, affirmed. is, decree Affirmed. having been con- in this cause record Curiam. —The
Per opinion, prepared foregoing Court, and the sidered this by the Court 1919',adopted 7837, Acts Chapter under *19 by the decreed considered, and ordered opinion, its it is in this cause Court Circuit of Court that the decree the hereby affirmed. be, the same is and Terrell, Brown and Whitfield, J., and Ellis, C. J. concur. Buford, J.
Strum, J., dissents. : J., (dissenting)
Strum, allegations complaint bill of my opinion the of In the contract. enforcible disclose an 24, 1924, accepts the- of June she In letter defendant’s by theretofore offered purchase price $4500.00 of of maturities prescribes a different scale complainant, but deferred, payments requires for the mortgage a says secure them. It is in true she that letter that she “would prefer cash rather than mortgage,” take a but that ais mere “preference,” statement of her alter- —an native. states in that She also letter that “we do not owe any balance on the property, so give could abstract with deed all liens, free of in payed when the is $4500.00 full.” phrase quoted, my opinion, last not does purport requirement a complainant pay to be that the all any event, and that no cash otherwise there would be say give does that defendant “will sale. The letter not paid in full.” complainant only $4500.00 when is deed phrase contrary, quoted appears chrono- the last On immediately that she after defendant’s statement logically mortgage, rather than take “prefer” would cash immediately by saying that she that when followed she $4500.00 is give all liens when the “could a deed free of ’’ full, only that event com- in the payed meant she good pay title plainant cash she could deliver elected no proposition latter was without incumbrances. The accept previously limitation her stated alternative on provided *20 de- payment of offered of two methods one fendant. says she will 1924, defendant 24, her June
In letter of from deposit “until we hear $100.00 complainant’s hold 1120 ’’
you again, me, know what we are do. To this means until complainant pay defendant heard whether will all cash, part payments maturing cash with deferred prescribed and secured as defendant in her of June letter 24, 1924. given This promptly information was her complainant’s 28, 1924, letter of June in the form of an acceptance terms, of her and while she still retained the represented consideration check $100.00 which she objection made no receiving cash, in lieu of after which deposit defendant retained the check for at least four months, until 1924. November, my meeting minds, there opinion,
In was suf- consideration, and compliance ficient sufficient with of Frauds. Statute purchase price agreed upon,
The total was as well as the cash, maturity portion paid to be and the dates of representing payments. the notes the deferred From that situation, equality in pay- the amounts the deferred presumed. ments is Conroy Woodcock, v. 43 Rep.
See Fla. South. 693. I therefore dissent. Error, Watrouse,
A. E. Jones, v. J. Harris Plaintiff in Error. Defendant B. Division Opinion Filed December 1927. notes eight per per bear interest at the rate of annum. cent It by agreed was further in and said contract that the defend- possession ant if was retain and nse of said house she so desired, April charges, until and if without rent said defendant should decided retain the nse said house, complainant pay was not to on the interest bal- purchase price ance of the until such time as the ’’ should be delivered to said defendant. it alleged It then that a complaint in the bill of signed memorandum of the said made and contract was parties, correspondence between and consisted of complainant’s agent, Harvey, respondent. M. P. and the correspondence, consisting and other This of several letters writings, part is attached to and made com- bill of “A,” “C,” “E,” “F,” plaint “B,” “D,” as Exhibits which are as follows: EXHIBIT “A’ ‘April 28, 1924. Lincoln, “Miss Jennie Sutton, Mass. “Dear Miss Lincoln: writing yon regard “I am you to the house which all River; Mooney have here in Little the one Avenue, on East and which lived in while here. you know, I presume, my “As I have sold lumber busi- here, handling am mostly my ness now real estate — own, though handling I am some for others. I now have yours. place a customer on this ‘‘Simply as a matter of information to and in order you may the better understand situation, I will
Notes
notes mortgage, matured notes secured annully. instead Defend- quarterly semi-annually, of 24, 1924, acceptance complain- an ant’s letter of June respects, except as to the terms previous ants all offer a new offer from payment. respect In that the letter is tantamount an complainant. It is the defendant to plan either part $4500.00 on her to sell for offer In the letter June payment therein stated. adopted accepted offer, complainant, agent, its