GEORGE F. WEBER AND R. M. WEBER, APPELLANTS,
v.
GLADYS I. WHITE, APPELLEE
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The court held that the chancellor was justified in decreeing damages as an incident to specific performance when the appellants failed to fully perform the contract by removing a fence.
Appellants contracted to sell real property to appellee, with possession to be surrendered within thirty days. A dispute arose over the removal of a f…
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This appeal is from a final decree requiring the appellants to specifically perform a written contract for the sale of certain real property, and awarding damages in the sum of $250.
The main point of controversy between the parties in the court below was the removal of a fence on the real property involved. The contract provided for surrender of possession on or before thirty days.
The court below by its decree found and adjudicated that the appellee was entitled to specific performance and that by reason of the appellants’ failure to have the fence removed, decreed damages in favor of the appellee in the sum of $250, the same to be deducted from the cash portion of the purchase price to be paid by the appellee. The appellants’ contentions are two-fold, namely, (1) that the appellee was estopped to plead as her excuse for nonperformance of the contract the appellants’ failure to remove the fence, and (2) that the alleged agreement to remove the fence was a collateral oral representation made by the real estate broker to the appellee and *737was therefore not binding on the appellants. Since both of these questions were covered by the issues made in the pleadings and were adjudicated by the court upon conflicting testimony and evidence, we are reluctant to disturb the chancellor’s decree and substitute our judgment in place of his.
Inasmuch as the appellants, under the chancellor’s findings, were unable to fully perform the contract by delivering the property without the fence thereon, he was justified in decreeing damages as an incident to the award of specific performance. See Miller v. Rolfe, Fla.App. 1957, 97 So.2d 132, page 134, and 49 Am. Jur., Specific Performance, Sec. 174, pages 198-99.
Accordingly, the decree appealed from is affirmed.
CARROLL, CHAS., C. J., and PEARSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Haisfield v. Fleming, Haile & Shaw, P.A., 819 So. 2d 182 (Fla. 4th DCA 2002)…v. Rieck & Fleece Builders Supplies, Inc., 109 So. 2d 394 (Fla. 2d DCA 1959)(granting specific performance and damages to be off-set by a reduction in purchase price for vendor’s wrongful refusal to perform contract for real estate); Weber v. White, 102 So. 2d 736, 736 (Fla. 3d DCA 1958)(granting specific performance with abatement of the purchase price where vendors could not fully perform contract by removing fence from property). In this case, the argument set forth by SS & D was not contrary to settled l…
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Weber v. White, 106 So. 2d 200 (Fla. 1958)…Certiorari denied 102 So. 2d 736.…
Authorities Cited
- Julia Miller and Renick v. Smith, 97 So. 2d 132 (Fla. 1st DCA 1957)