A. H. THOELKE AND MATTIE THOELKE, HIS WIFE, APPELLANTS,
v.
CHARLES W. MORRISON AND YVONNE MORRISON, HIS WIFE, APPELLEES
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In this contract dispute, the Thoelkes executed a contract for deed to sell property to the Morrisons, then attempted to rescind by telephone before the contract was delivered. The trial court granted the Morrisons' request for specific performance, and the appellate court affirmed, holding that the Morrisons were entitled to enforce the contract because the Thoelkes failed to perform or offer to perform as required to assert a laches defense.
The Morrisons were entitled to specific performance because the Thoelkes failed to perform or offer to perform the contract, which is a prerequisite to asserting a laches defense. The Morrisons, having remained ready, willing, and able to perform throughout and not being responsible for the delay, were entitled to enforce the contract.
“The plaintiffs did not perform nor offer to perform the contract. This they must do in order to avail themselves of the defendants' delay as a defense.”
Establishes the core requirement that a party asserting laches must itself be in compliance with its contractual obligations.
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Join FLexlaw to unlock all legal intelligenceThe Morrisons executed a contract for deed and mailed it to the Thoelkes with a check for the initial payment. The Thoelkes executed the contract and …
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A. H. Thoelke and Mattie Thoelke, his wife, as plaintiffs, instituted a suit to quiet title as to a recorded contract for deed which they had executed agreeing to sell certain property to the defendants, Charles W. Morrison and Yvonne Morrison, his wife.
The defendants filed an answer and counterclaim for specific performance of the contract. Summary judgment was granted in favor of the plaintiffs. An appeal was taken to this court, and said judgment was reversed with directions. Morrison v. Thoelke, Fla.App.1963, 155 So.2d 889.
On remand, the trial court dismissed the plaintiffs’ suit for quiet title, and granted defendants specific performance of the contract. It is from this judgment that the plaintiffs appeal.
The agreement in question was executed by the defendants and mailed to the plaintiffs, together with a check for the initial payment as provided in the contract. The plaintiffs executed the contract and mailed it to defendants’ attorney. Before the agreement was delivered by the post office, the plaintiffs by telephone notified the defendants’ attorney that they had decided not to go through with the contract, were returning the check, and requested the return of the contract. Defendants’ attorney refused and delivered the contract to defendants, who then recorded the same in the Public Records.
The record discloses that the land involved contained approximately fifteen acres; that approximately four years elapsed between the execution of the contract and the filing of suit; that there was a dispute as to who had paid the real estate taxes, although defendants introduced in evidence paid tax receipts for the four intervening years and proof that the defendants made timely demands for performance of the contract. The plaintiffs introduced no evidence at the trial except the testimony of an expert as to the increased value of the land in the intervening time. There were no improvements or substantial use of the property by either party.
The issue before the trial court was whether or not the defendants’ right to specific performance was barred by laches.
The plaintiffs did not perform nor offer to perform the contract. This they must do in order to avail themselves of the defendants’ delay as a defense. The defendants, having been ready, willing and able to perform the contract at all times and not being responsible for the delay in the consummation of the transaction, are under the circumstances of this case entitled to specific performance. Tate v. Pensacola, Gulf, Land and Development Co., 1896, 37 Fla. 439, 20 So. 542.
Affirmed.
SMITH, C. J., and ALLEN, J., concur.
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Cited By
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JAY VEE Realty Corp. v. Jaymar Acres, Inc., 436 So. 2d 1053 (Fla. 4th DCA 1983)…mance, the defendant himself must have performed or offered to perform all terms of the contract. Tate v. Pensacola, Gulf Land & Development Co., 37 Fla. 439, 20 So. 542 (1896); Wilson v. Odom, 215 So. 2d 37 (Fla. 1st DCA 1968); Thoelke v. Morrison, 172 So. 2d 604 (Fla. 2d DCA 1965). Appellant has not demonstrated that it ever provided or tendered an abstract of title, as required by the contract of sale. Appellants did not raise lack of mutuality of remedy by affirmative defense as required by Rule 1.110(d)…
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McHUGH v. Conforti, 47 Fla. Supp. 15 (Broward Cty. Cir. Ct. 1977)…court finds and holds that this defense is not available to the defendants. In order for the defendants to invoke this doctrine they must show that they have performed or offered to perform their obligations under the agreement. Thoelke v. Morrison, 172 So. 2d 604 (Fla. 2nd Dist. 1965). The defendants have neither performed nor offered to perform (or even alleged same) their obligations under the option clause. Moreover, in a case with facts analogous to those in the instant case, it has been held that where…
Authorities Cited
- Tate v. Pensacola, 37 Fla. 439 (Fla. 1896)
- Morrison v. Thoelke, 155 So. 2d 889 (Fla. 2d DCA 1963)