HOME SEEKERS REALTY COMPANY, A FLORIDA CORPORATION, APPELLANT,
v.
MRS. D. C. MENEAR, JOINED BY HER HUSBAND, DON C. MENEAR, APPELLEES
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Home Seekers Realty Company appealed the lower court's overruling of its general demurrer to a bill seeking rescission of a real estate contract. The Florida Supreme Court affirmed, holding that the bill stated sufficient equity for rescission based on fraudulent representations regarding property improvements.
The court held that the bill stated sufficient equity and the demurrer was properly overruled. A promissory representation as to a material matter, made without intention to perform it and for the purpose of deceiving the purchaser, constitutes legal fraud justifying rescission, even though mere failure to carry out future improvement promises would not.
“a promise or promissory representation as to a material matter, made without any intention of performing it, or made with the positive intention not to perform it, and made by the promisor for the purpose of deceiving the promisee and inducing him to act where he otherwise would not have done so, and the promisee does act in reliance thereon to his injury, constitutes a legal fraud”
Establishes the legal standard for fraud in real estate transactions distinguishing between mere breach of future promises and actionable fraudulent inducement
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Join FLexlaw to unlock all legal intelligenceHome Seekers Realty Company sold a lot in Hollywood Hills First Addition to the Menears for $4,200. The Menears paid $250 in October 1926, $600 in Nov…
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— The demurrer to the bill in this case is a general demurrer to the bill as a whole. Therefore, if the bill contained equity, the court below was not in error in overruling the demurrer. It seems to us that while some of the allegations may have been defective, the bill did contain equity. The bill seeks rescission and cancellation of a contract for the purchase of a lot in a subdivision known as Hollywood Hills First Addition, on the ground that the complainant, the purchaser, was induced to purchase the lot by reason of certain false and fraudulent representations as to certain important improvements which were to be made to the property, and in the subdivision, and alleges that said representations were made with the intent to deceive and defraud the complainant and that the defendant knew them to be false at the .time they were made and that the complainants were in truth and in fact deceived and defrauded thereby, and it appears from the allegations that certain of the false representations concerned existing material facts, as well as improvements to be made in the future. The purchase price of the lot was $4200.00; $250.00 was paid at the time the contract was made in October, 1926, $600.00 was paid in November, 1925, and $787.50 was paid on April 13, 1926; that the purchasers declined to make any *9further payments because of the failure and refusal of the -defendant to carry out its representations as to improvements. And -that the market value of the lot is not more than $100.00 at the time of the filing of the bill. We think the bill shows that complainant was injured by the alleged fraudulent representations. The bill prays that the -defendant be required to refund the monies pai-d by the complainant and upon failure to do so that complainants be decreed to have a vendee’s lien against the property and that the same be sold to satisfy said lien, etc.
This court has recognized the generally accepted doctrine that, while a mere failure to carry out promises or representations as to future improvements made by the vendor at the time the purchaser entered into the contract will not justify a rescission of the contract, yet a promise or promissory representation as to a material matter, made without any intention of performing it, or made with the positive intention not to perforin it, and made by the promisor for the purpose of deceiving the promisee and inducing him to act. where he otherwise would not have done so, and the promisee does act in reliance thereon to his injury, constitutes a legal fraud. See* Smith v. Home Seekers Realty Co., 97 Fla. 236, 122 So., 709, 67 A. L. R. 807. In the latter ease it was said: “It is not alleged that at the time these promises or representations were made the vendor had no intention of fulfilling them, and that they were falsely made with the intent to defraud and deceive the complainant”. Citing Roberts v. James, Ann. Cas. 1914 B. 859, and note, 83 N. J. L. 492, 85 Atl., 244. See also Black on Cancellation and Rescission, 2nd ed., Secs. 90, 91, where these questions are fully discussed with copious citations of cases.
We are also inclined to think that the allegations of this bill bring this case within the principles enunciated in Nixon v. Temple Terrace Estates, 97 Fla. 392, 121 So. 475, see also Harrington v. Rutherford, 38 Fla. 321, 21 So. 283, and Holgate v. Jones, 94 Fla. 198, 113 So. 714.
*10It would appear therefore that the bill was not entirely without equity and that the chancellor was without error in overruling the demurrer and that his order to that effect should be affirmed.
Whitpield, Ellis, Terrell and Davis, J.J., concur.
Buford, C.J., dissents.
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Citator
Cited By (12 total)
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Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So. 2d 1367 (Fla. 4th DCA 1981)…cited therein. However, the cases recognize an exception where the promise to perform a material matter in the future is made without any intention of performing or made with the positive intention not to perform. Home Seekers’ Realty Co. v. Menear, 102 Fla. 7, 135 So. 402 (1931); Gottsch v. Walker, 376 So. 2d 879 (Fla.1st DCA 1979). The plaintiffs’ evidence, viewed most favorably to them, would sustain a factual finding that defendant made false promises with no intention of performing, or with the posit…
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Perry v. Cosgrove, 464 So. 2d 664 (Fla. 2d DCA 1985)…past or existing fact. An exception arises, however, where the promise to perform a material matter in the future is made without any intention of performing or is made with the positive intention not to perform. Home Seekers’ Realty Co. v. Menear, 102 Fla. 7, 135 So. 402 (1931); Hamlen v. Fairchild Ind., Inc., 413 So. 2d 800 (Fla. 1st DCA 1982). The complaint alleges that Cosgrove lacked the intention to permanently employ Perry when he made the statements and that Perry, as a result, suffered damages.…
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Bernard Marko & Assocs., Inc. v. Morton Steele and Lester Segerman, 230 So. 2d 42 (Fla. 3d DCA 1970)…r fraud based upon representation of a future occurrence, a plaintiff must allege that the representation was “made without any intention of performing it, or made with the positive intention not to perform it * * Home Seekers’ Realty Co. v. Menear, 102 Fla. 7, 135 So. 402 (1931). These essential allegations are completely lacking in appellant’s complaint. But appellant contends that since the summary judgment may have been based upon the insufficiency of the allegations, it should have been given an oppo…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nixon v. Temple Terrace Ests., Inc., 97 Fla. 392 (Fla. 1929)
- Harrington v. Rutherford, 38 Fla. 321 (Fla. 1896)
- Holgate v. Jones, 94 Fla. 198 (Fla. 1927)
- Martin v. Walking Lumber & Supply Co., 94 Fla. 208 (Fla. 1927)
- Finlay v. Santa Rosa Truck Growers Ass'n, 97 Fla. 236 (Fla. 1929)