LAWRENCE C. STEWART, JR., APPELLANT,
v.
JESSE P. MEHRLUST AND BETTY H. MEHRLUST, HIS WIFE, APPELLEES
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A seller cannot recover a deposit not actually made by the buyer, even if the contract allows retention of deposits as liquidated damages upon buyer default.
Buyers entered into a real estate contract with a deposit requirement, but failed to tender the deposit. The buyers subsequently defaulted on the cont…
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SCHOONOVER, Judge.
Larry D. Stewart, Jr., one of the defendants below, has appealed from a final judgment entered against him and James Dickerson. We reverse.
On or about March 17, 1980, Mr. and Mrs. Jesse Mehrlust, appellees, entered into a contract for the sale of certain real estate to the appellant and James Dickerson. The agreement provided that the purchasers were to make a $10,000 deposit. At the time of execution of the contract, the purchasers failed to tender the deposit. However, the appellees signed the contract and were willing to proceed with the sale of the property. The buyers defaulted and the appellees brought suit for the amount of the deposit. The trial court entered judgment against the buyer for $10,000 plus interest and attorney’s fees.
The contract provided:
U. DEFAULT: If Buyer fails to perform this Contract within the time specified, the deposits) paid by the Buyer aforesaid may be retained by or for the account of Seller as liquidated damages, consideration for the execution of this Contract and in full settlement of any claims; whereupon all parties shall be relieved of all obligations under the Contract; or Seller, at his option, may proceed at law or in equity to enforce his legal rights under this Contract.
When a real estate' contract provides that if a sale is not closed because of the fault of the buyer, the deposit paid under the contract is to be retained by the seller, the seller cannot recover a deposit not actually made. Campbell v. Salman, 384 So. 2d 1331 (Fla. 3d DCA 1980).
The appellant did not tender a deposit, so there was nothing to be retained by the sellers. Since appellee did not seek to recover the difference, if any, between the agreed purchase price and the actual value of the property at the time of the breach, judgment should have been entered for the appellant. See Campbell v. Salman.
We reverse and remand for the entry of a judgment for the appellant.
GRIMES, A. C. J., and OTT, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Wilson v. Woodward, 602 So. 2d 547 (Fla. 2d DCA 1992)…was therefore correct in ordering the funds returned to him. When a contract provides that if a buyer defaults, the deposit paid under the contract can be retained by seller, the seller can only recover a deposit actually made. Stewart v. Mehrlust, 409 So. 2d 1085 (Fla. 2d DCA1982). Under this principle of law, it can be argued that because the extension fees were not placed with the escrow agent named in the agreement they were not actually made. However, under certain circumstances, written contracts can be…
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Freitag v. Lakes OF Carriage Hills, Inc., 467 So. 2d 708 (Fla. 4th DCA 1985)…her clauses, contemplated a total 20% deposit when the form was printed. However, only $1,000 in deposits was actually received from this buyer; and under the authority of Makris v. Williams, 426 So. 2d 1186 (Fla. 4th DCA 1983); Stewart v. Mehrlust, 409 So. 2d 1085 (Fla. 2d DCA 1982); and Campbell v. Salman, 384 So. 2d 1331 (Fla. 3d DCA 1980), the seller cannot recover a deposit not actually made. The buyer/maker of the note contends there was a “failure of consideration”,1 as opposed to a “want of considerat…
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Makris v. John G.E. Williams, 426 So. 2d 1186 (Fla. 4th DCA 1983)…: “When a real estate contract provides that if a sale is not closed because of the fault of the buyer, the deposit paid under the contract is to be retained by the seller, the seller cannot recover a deposit not actually made.” Stewart v. Mehrlust, 409 So. 2d 1085, 1086 (Fla. 2d DCA 1982); Campbell v. Salman, 384 So. 2d 1331 (Fla. 3d DCA 1980). Applying this general rule, we can quickly dispose of Williams’ claim that the trial court should have awarded the full $40,000 down payment as liquidated damages. Th…
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- Campbell v. Salman, 384 So. 2d 1331 (Fla. 3d DCA 1980)