FLORIDA HAY AND LAND DEVELOPERS, INC. AND AUGUSTUS L. LITTLE AND REGINA L. LITTLE, APPELLANTS,
v.
MCDILL COLUMBUS CORPORATION, APPELLEE
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Appellants' counterclaim for rescission was properly denied because their breach of the mortgage payment obligation preceded any alleged breach by appellee, terminating the contract and relieving appellee of performance duties.
A party cannot obtain rescission when it has breached the contract prior to the other party's alleged breach, as the first breach terminates the contract and relieves the non-breaching party of its remaining duties.
[1] A buyer's material breach of a land purchase contract prior to the seller's alleged breach terminates the contract and relieves the seller of its remaining performance ob…
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Join FLexlaw to unlock all legal intelligenceAppellants, as buyers, failed to make a July 14 mortgage payment under a land purchase contract. Appellee, the seller, subsequently failed to provide …
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THOMPSON, Judge.
The appellants, who were defendants and counterplaintiffs below, appeal a final judgment and amended final judgment granting appellee’s suit for foreclosure and denying appellants’ counterclaim for rescission.
The appellants contend, inter alia, that the trial judge erred in denying their counterclaim for rescission-because they have no adequate remedy at law. The court properly denied rescission because appellants breached the contract by failing to make the July 14 mortgage payment. There is competent substantial evidence this breach occurred prior to any arguable breach by the appellee in failing to provide a release of 90 acres of the property from an existing mortgage. Appellee’s failure to perform after July 14 is not actually a breach of contract because the appellants’ breach operated to terminate the contract and relieve the appellee of its duty to perform. Hustad v. Edwin K. Williams & Co.-East, 321 So. 2d 601 (Fla. 4th DCA 1975), cert. denied, 333 So. 2d 41 (Fla.1976). Therefore, the failure of the appellee to provide the release is not a breach of contract for which damages are due and appellants were properly denied damages and the equitable remedy of rescission.
We find no merit to the remaining issues. AFFIRMED.
WENTWORTH and WIGGINTON, JJ., concur.
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Citator
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K. KEY Mgmt. Corp. v. Fed. Deposit Ins. Corp., 572 So. 2d 1024 (Fla. 3d DCA 1991)…an insolvent state bank, was entitled to foreclosure and that no affirmative defenses were sustainable under the law. See David v. Sun Fed. Sav. & Loan Ass’n, 461 So. 2d 93 (Fla.1984); Florida Hay and Land Developers, Inc. v. McDill Columbus Corp., 539 So. 2d 570 (Fla. 1st DCA 1989); see also Abdulla Fouad & Sons v. FDIC, 898 F. 2d 482 (5th Cir.1990); Lambert v. FDIC, 847 F. 2d 604 (9th Cir.1988); FDIC v. La Rambla Shopping Center, Inc., 791 F. 2d 215 (1st Cir.1986). Affirmed.…
Authorities Cited
- Hustad v. Edwin K. Williams & Co.-East, 321 So. 2d 601 (Fla. 4th DCA 1975)