EUGENE J. PARKER, ET AL., APPELLANTS,
v.
JAMES W. WEISS, APPELLEE
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Homeowners in financial distress entered into a contract to sell their property to a real estate broker for $21,000. When the homeowners failed to appear at multiple closing dates and refused to perform, the broker sought specific performance, which the trial court granted. The appellate court affirmed, finding the contract had sufficient consideration, mutuality, and that the broker was prepared to perform.
The contract had sufficient consideration because the purchaser's promise to pay in exchange for the vendors' agreement to convey was adequate to form a binding contract. The contract evinced mutual covenants sufficient to satisfy the mutuality requirement. Weiss demonstrated readiness to perform by attempting to close on three occasions and arranging financing to pay off the mortgage, so the trial court correctly granted specific performance.
[1] A contract for the sale of realty must be supported by consideration.
[2] A promise to pay in exchange for an executory agreement to convey property is sufficient consideration to form a binding contract.
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Join FLexlaw to unlock all legal intelligence“In this case, the purchaser's promise to pay in exchange for the vendors' executory agreement was sufficient to form a binding contract.”
Establishes that the contract had adequate consideration to support specific performance despite the Parkers' argument to the contrary.
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Join FLexlaw to unlock all legal intelligenceIn fall 1977, the Parkers faced foreclosure of their home. On September 28, 1977, foreclosure proceedings were filed. Real estate broker James Weiss a…
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PER CURIAM.
Appellants seek review of the trial court’s order requiring specific performance of a contract to convey realty. They assert the trial court erred because the contract lacked consideration and mutuality and because appellee refused to perform the terms of the contract.
During the early fall of 1977, appellants were experiencing financial difficulties and were faced with the possible foreclosure of their home.
On September 28, 1977 appellants’ position notably worsened when the mortgage holder filed a foreclosure action. Weiss, a real estate broker subsequently approached appellants concerning the possibility of purchasing their home.
On November 15, 1977, the parties entered a “Deposit Receipt & Purchase and Sale Agreement” providing for the sale of the home for $21,000 and for receipt of a $500 note which the purchaser, Weiss, retained as “agent.” A judgment of foreclosure was entered on November 23, 1977 which provided the home would be sold by the clerk of the court on December 15, 1977 unless the Parkers paid the mortgage before that time. Although the contract included a provision for assumption of the outstanding mortgage, the mortgagee refused to permit Weiss to assume it.
Nevertheless, Weiss was able to make other arrangements to pay off the mortgage. Appellants, however, were also able to secure sufficient financial backing to satisfy the foreclosure judgment. Although Weiss’s attorney notified appellants of several different closing dates, neither appellants nor their attorney appeared. Weiss then filed this action for specific performance which resulted in a final judgment rendered against appellants requiring them to specifically perform the contract conveying the realty. Appellants appeal this judgment.
Appellants are correct in asserting a contract for the sale of realty, like other contracts, must be supported by consideration. In this case, the purchaser’s promise to pay in exchange for the vendors’ executory agreement was sufficient to form a binding contract. Harper v. Bronson, 104 Fla. 75, 139 So. 203 (1932).
Therefore, we need not reach the issue of whether the note retained by Weiss constitutes sufficient consideration. There must also be mutuality of obligation and remedy before specific performance is an appropriate form of relief. Con-Dev of Vero Beach, Inc. v. Casano, 272 So. 2d 203 (Fla. 4th DCA 1973). This contract evinces mutual covenants sufficient to sustain this requirement. Although appellants assert Weiss refused to perform the terms of the contract, Weiss testified he attempted to close the sale on three occasions and that he was prepared to pay off the mortgage. This is sufficient record evidence to affirm the trial court’s finding that Weiss was prepared at all times to purchase the property.
Accordingly, appellants have failed to demonstrate reversible error. The final judgment is, therefore, AFFIRMED.
McCORD, MILLS and THOMPSON, JJ., concur.
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Parker v. The Dinsmore Co., 443 So. 2d 356 (Fla. 1st DCA 1983)…ested in selling, when Weiss, himself having secured financing, insisted that they perform under the sales agreement. Weiss then sought specific performance of that agreement and prevailed at both the trial and appellate levels. See Parker v. Weiss, 404 So. 2d 820 (Fla. 1st DCA 1981). Throughout that litigation, which finally terminated when the Florida Supreme Court declined to review the case on February 24, 1982, Harrell had at all times represented the Parkers in their efforts to keep their home. Only fo…
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Free v. Free, 936 So. 2d 699 (Fla. 5th DCA 2006)…. 702, 18 So. 2d 888 (1944)). The relief requested in a suit for specific performance may be granted if it is first established that the contract is valid and enforceable. See Hembree v. Bradley, 528 So. 2d 116 (Fla. 1st DCA 1988); Parker v. Weiss, 404 So. 2d 820, 821 (Fla. 1st DCA 1981). This is one of those well-settled legal principles previously alluded to, and its status as a legal issue requires that we resolve it based on the de novo standard of review. Robert asserts the contract is invalid because i…
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Terex Trailer Corp. v. McILWAIN, 579 So. 2d 237 (Fla. 1st DCA 1991)…Fla. 1st DCA 1965); Ocean Dunes of Hutchinson v. Colangelo, 463 So. 2d at 438. In looking to the reasonableness of a contract, mutuality of obligation and remedy must exist for specific performance as an appropriate form of relief. Parker v. Weiss, 404 So. 2d 820, 821 (Fla. 1st DCA 1981), review denied, 412 So. 2d 468 (Fla.1982); Burger Chef Systems, Inc. v. Burger Chef of Fla., Inc., 317 So. 2d 795, 797 (Fla. 4th DCA 1975), cert. denied, 334 So. 2d 603 (Fla.1976). Mutuality of obligation pertains to conside…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Harper v. Bronson, 104 Fla. 75 (Fla. 1932)
- Con-Dev OF Vero Beach, Inc. v. Casano, 272 So. 2d 203 (Fla. 4th DCA 1973)