BURNERD HORWITZ, APPELLANT,
v.
GROVPAC, INC., A FLORIDA CORPORATION, APPELLEE
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In this land sale contract dispute, the court affirmed the trial court's judgment for the seller, holding that the buyer failed to satisfy a condition precedent to specific performance by not tendering the purchase price before filing suit. The case established that a buyer must tender payment or establish readiness to pay before seeking specific performance of a land contract.
The court held that the buyer was obligated to make a tender of the purchase price prior to bringing any action for specific performance, regardless of whether he believed the tender would be accepted. A tender is a condition precedent to specific performance and cannot be excused merely because the buyer thinks it would be futile.
[1] A complaint styled as an action for declaratory relief may be treated as an action for specific performance of a contract.
[2] A purchaser seeking specific performance of a land contract must, as a condition precedent, either pay the contract sum, tender it, establish readiness, willingness, and…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“As a condition precedent to specific performance the seeking purchaser must either pay the contract sum; tender it; establish that he is ready, willing and able to do so; or establish that he has been excused from so doing.”
This quote establishes the foundational legal rule that governs what a buyer must do before seeking specific performance of a land contract.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHorwitz agreed to purchase land from Grovpac at $5,500 per net acre, with the exact acreage to be determined by a surety provided by the seller. Two s…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
This is an action upon a contract in which the defendant agreed to sell certain land to the plaintiff. The chancellor found that the plaintiff failed to tender the balance of the contract purchase price which according to the contract was to be computed upon a price of $5,500 per net acre as established by a surety to be furnished by the seller. Final judgment was accordingly entered in favor of the defendant, and plaintiff appeals.
We think that the chancellor’s treatment of plaintiff’s complaint, styled as an action for declaratory relief, as in fact an action for specific performance of the contract was correct. Garner v. DeSoto Ranch, Inc., Fla.App.1963, 150 So. 2d 493; Swain v. Reliable Insurance Company, Fla.App.1967, 200 So. 2d 862; New Amsterdam Cas. Co. v. Intercity Supply Corp., Fla.App.1968, 212 So. 2d 110.
Plaintiff argues that the chancellor erred in finding that he should have made a tender of the amount of the purchase price which he considered to be payable under the terms of the contract. He contends that he should not be required to make a tender only of what he believed to be the purchase price, and a tender would have been a vain and useless act because Grovpac, Inc. would not have accepted it. We cannot agree.
The basic dispute between the parties involved a discrepancy in two surveys of the property. Grovpac’s survey was completed on October 24, 1971 and showed a total of 18.62 acres. On October 28, Grov-pac communicated to plaintiff’s attorney that the closing date for the transaction would be November 3, 1971. The plaintiff then contacted defendant’s surveyor and obtained a recomputation of the acreage at 17.002 acres. The chancellor noted that the acreage was susceptible of ascertainment as of the date of closing, and he found that defendant had not acted unreasonably in setting the November 3 closing date.
Grovpac points out that the facts of this case are analogous to the case of Glave v. Brandlein, Fla.App.1967, 196 So. 2d 780, in which the point on appeal was whether or not as a condition precedent to an action for specific performance of a land contract the purchaser must make a cash tender. The court therein recited the general rule as follows:
“As a condition precedent to specific performance the seeking purchaser must either pay the contract sum; tender it; establish that he is ready, willing and able to do so; or establish that he has been excused from so doing.”
We have concluded that the trial court was correct in determining that plaintiff was obligated in this case to make a tender of the purchase price prior to bringing this action.
Therefore, for the reasons stated and upon the authorities cited, the judgment appealed is affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Malt v. Deese, 399 So. 2d 41 (Fla. 4th DCA 1981)…e because they failed to tender the purchase price. However, it is only necessary that a vendee establish that he has been ready, willing and able to pay the purchase price. Glave v. Brandlein, 196 So. 2d 780 (Fla. 4th DCA 1967); Horwitz v. Grovpac, 286 So. 2d 576 (Fla. 3d DCA 1973), cert. denied 293 So. 2d 365 (Fla.1974). We believe that Mr. Deese’s letter of October 14, 1977, to Mr. Malt considered together with the testimony of the Deeses’ sufficiently established the Deeses’ willingness and ability to pay…
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Harrison v. Baker, 402 So. 2d 1270 (Fla. 3d DCA 1981)…der to obtain specific performance of a land contract, the “purchaser must either pay the contract sum; tender it; establish that he is ready, willing and able to do so; or establish that he has been excused from so doing.” Horwitz v. Grovpac, Inc., 286 So. 2d 576, 577 (Fla.3d DCA 1973), cert. denied, 293 So. 2d 365 (Fla.1974); Glave v. Brandlein, 196 So. 2d 780, 781 (Fla. 4th DCA 1967). The trial court’s finding that appellee was, at all times material, ready, willing, and able to close the subject transacti…
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Burnerd Horwitz v. Grovpac, Inc., 293 So. 2d 365 (Fla. 1974)…Certiorari denied. 286 So. 2d 576. ADKINS, C. J., and ROBERTS, ERVIN, McCAIN and BOYD, JJ., concur.…
Authorities Cited
- NEW Amsterdam Cas. Co. v. Intercity Supply Corp., 212 So. 2d 110 (Fla. 4th DCA 1968)
- Glave v. Brandlein, 196 So. 2d 780 (Fla. 4th DCA 1967)
- Garner v. DE Soto Ranch, Inc., 150 So. 2d 493 (Fla. 2d DCA 1963)
- Swain v. Reliable Ins. Co., 200 So. 2d 862 (Fla. 3d DCA 1967)