ABBA MILLER OTSTOTT AND EDWARD W. OTSTOTT, PLAINTIFFS IN ERROR,
v.
V. L. MERRYMAN, DEFENDANT IN ERROR
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In this contract dispute, the Florida Supreme Court reversed a judgment for the defendant Merryman, holding that he was not entitled to settlement funds because he refused to surrender all his rights under the underlying land sale contract as expressly required by the settlement agreement.
The court reversed the judgment, holding that Merryman was not entitled to the settlement funds because he expressly refused to surrender all his rights under the contract, which was an express condition precedent to the Otstotts' obligation to pay.
“It is beyond question that the agreement to pay that or any amount was expressly conditioned upon the two Merrymans surrendering all their rights whatever they might be, under the contract of sale.”
Establishes the express condition precedent that Merryman failed to satisfy.
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Join FLexlaw to unlock all legal intelligenceThe Otstotts contracted to sell Merryman and his wife a Miami lot with forfeiture provisions for missed payments. After the Merrymans made only the fi…
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Cockrell, J.
This case was tried by an attorney, as Judge Ad Litem, by agreement of the parties, the resident Circuit Judge being disqualified. There was judgment for the plaintiff and the defendants took writ of error. The plaintiff’s supposed cause of action arose as follows : Mrs.-Otstott and her husband entered into a contract to sell Merryman and his wife a lot in Miami upon certain payments being made, the contract providing' for its forfeiture should the payments be not made at certain times. Mrs. Merryman made the first payment, but the would-be purchasers were unable or unwilling to live up to the contract. A conference was then held and it was then agreed that the Otstotts would pay the Merrymans a certain sum provided they would surrender possession of the property and execute a release of all their rights under the contract. Owing to the inability of the Otstotts to supply that agreed sum of money the conference failed of its purpose.
Merryman proceeded at once to place upon the public records the contract of sale, and even at the trial disclaimed a willingness 'to accept the-sum agreed upon as a settlement of his rights under the contract. It is not clear that he surrendered possession of the lot.
We think the court erred in giving him judgment for this amount. It is beyond question that the agreement to pay that or any amount was expressly conditioned upon the two Merrymans surrendering all their rights whatever they might be, under the contract of sale. We do not know Mrs. Merryman’s attitude in the matter, as she is not before us, but Merryman at the trial testified, “I am not willing at this time upon payment to me of the amount promised to give the Otstotts a quit-claim deed in the nature of the receipt as they requested. I am not willing at this time to surrender if they paid me.” He was willing to do this only upon the payment of what he conceived to be his equities under the contract of sale, but this action is not upon that contract nor is its solution before us.
The judgment is reversed. Taylor, C. J., and Shackleford and Ellis, JJ., concur. Whitfield, J., absent on account of illness.
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Babe, Inc. v. Baby's Formula Serv., Inc., 165 So. 2d 795 (Fla. 3d DCA 1964)…e contract to the plaintiff. . Twyman v. Roell, 123 Fla. 2, 166 So. 215. . New Amsterdam Casualty Co. v. Utility Battery Mfg. Co., 122 Fla. 718, 166 So. 856; All Florida Surety Company v. Vann, Fla.App.1961, 128 So. 2d 768. . Otstott v. Merryman, 71 Fla. 352, 71 So. 278; Thomson v. Kyle, 39 Fla. 582, 23 So. 12. . 7 Fla.Jur. Contracts § 148. . Gendzier v. Bielecki, Fla.1957, 97 So. 2d 604. . Friedman v. Virginia Metal Products Corp., Fla.1952, 56 So. 2d 515. . 39 Am.Jur., Novation §§ 30-34. . See, C…
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Slaughter v. Gordon J. Barnett. (Two Cases.), 114 Fla. 352 (Fla. 1934)…the other and one cannot maintain an action against the other without showing performance or a tender of performance on his part unless such performance has been excused. That rule is universally recognized in this country. See Otsott v. Merryman, 71 Fla. 352, 71 South. Rep. 278; Jones v. United States, 6 Otto 24, 24 L. Ed. 644; 6 R. C. L. 861. The declaration in this case presents the question whether in the case of an executory agreement to sell land the vendor before the date for performance arrives…
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