SAUL J. MORGAN ENTERPRISES, INC., A FLORIDA CORPORATION, APPELLANT,
v.
57TH AVENUE DEVELOPMENT CORPORATION, APPELLEE
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Appellant Morgan Enterprises exercised an option to purchase real property but failed to provide the written ten-day notice required by the option agreement to obtain a $34,975 cash purchase discount. The trial court awarded the discount anyway, but the appellate court reversed, holding that the written notice requirement was a condition precedent to the discount and could not be waived by the trial court.
The court held that the buyer is not entitled to the discount because the written ten-day notice was an express, unambiguous condition precedent to obtaining the discount, and the trial court had no authority to waive or vary the parties' written contract by rewriting its terms.
[1] A party seeking a discount on a purchase price, as provided in an option agreement, must strictly comply with all conditions precedent to that discount, including any req…
[2] A written notice requirement in a contract cannot be waived by a court when there is no evidence of waiver and the notice serves a material purpose for one of the parties…
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Join FLexlaw to unlock all legal intelligence“Optionee shall have the option to pay all cash for subject property over and above the unpaid balance of the note secured by Banker's mortgage as of the date of closing, and if Optionee exercises such option, then Optionee shall give Optionor not less than 10 days' written notice prior to the date of closing of the election of such option by Optionee, and thereupon the purchase price will be reduced by the sum of $34,975.00.”
The contractual provision at issue establishing the written notice requirement as a condition for the cash discount
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Join FLexlaw to unlock all legal intelligenceMorgan Enterprises (defendant below, appellant here) and 57th Avenue Development Corporation entered into an option agreement for real property purcha…
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BARKDULL, Chief Judge.
The appellant, defendant in the trial court, seeks review of a final judgment in favor of the plaintiff following a trial without jury.
The plaintiff and defendant entered into an option agreement for the purchase of real property. The plaintiff was the prospective buyer and the defendant the prospective seller. The option agreement included a provision allowing for a certain discount in the sales price if the seller paid cash. This provision also required a ten-day .written notice of the intent to pay cash. It read as follows:
**
“5. (c) * * * Optionee shall have the option to pay all cash for subject property over and above the unpaid balance of the note secured by Banker’s mortgage as of the date of closing, and if Optionee exercises such option, then Optionee shall give Optionor not less than 10 days’ written notice prior to the date of closing of the election of such option by Optionee, and thereupon the purchase price will be redu-cad by the sum of $34,975.00.” [emphasis added]
* * * * * *
The plaintiff exercised its option to buy, and a closing date was set. It is undisputed that no written notice of intent to pay cash was ever sent by the plaintiff to the defendant, either within or without the ten-day time period. Closing was held, at which time the plaintiff tendered cash and demanded the discount. The defendant refused to allow the discount because of lack of notice. The defendant gave the plaintiff a choice of paying part cash, executing a purchase money mortgage and taking title subject to a prior mortgage, or paying cash in full above the existing mortgage, all in accordance with the agreement of purchase and sale. 'The plaintiff paid in cash above the existing mortgage, hut was not given the discount. Subsequently, the plaintiff brought suit to recover the amount of the discount. The trial court rendered judgment for the amount of the discount and in said judgment the following is found:
“ * * * The Court is of the view and so concludes as a matter of fact that the plaintiff did properly exercise the option contained in paragraphs 4 and 5 of the Option Agreement of July 28, 1971 and particularly paragraph 5(c) thereof and based upon said conclusion the defendant would be indebted to the plaintiff * * * ”
* * * * *
We reverse. The discount was only available under the clear terms of the option agreement if the ten-day notice, in writing, was given. It was conceded that no such written notice was given and there was no evidence of a waiver of this requirement but, to the contrary, there was evidence as to the economic necessity of the grantor being accorded advance notice of whether or not it was going to be expected to close receiving approximately $600,000.00 in cash or whether it was going to have to close receiving $350,000.00 in cash and the balance by a purchase money mortgage. We find that the ruling of the trial court varied the terms of the written agreement and it was not the province of the trial judge to rewrite the agreement between the parties. Home Development Company of St. Petersburg, Inc. v. Bursani, Fla.1965, 178 So. 2d 113; All-Dixie Insurance Agency, Inc. v. Moffat, Fla.App.1968, 212 So. 2d 347; International Expositions, Inc. v. City of Miami Beach, Fla.App.1973, 274 So. 2d 29.
Therefore, we reverse the judgment here under review, with directions to enter a final judgment in favor of the defendant, dismissing the plaintiffs cause of action.
Reversed and remanded, with directions.
CHARLES CARROLL, Associate Judge, dissents.
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Citator
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Nat'l Health Labs., Inc. v. Bailmar, Inc., 444 So. 2d 1078 (Fla. 3d DCA 1984)…is bound by, and a court is powerless to rewrite, the clear and unambiguous terms of a voluntary contract, Home Development Co. of St. Petersburg v. Bursani, 178 So. 2d 113 (Fla.1965), Saul J. Morgan Enterprises, Inc. v. 57th Ave. Development Corp., 305 So. 2d 18 (Fla. 3d DCA 1974), cert. denied, 314 So. 2d 586 (Fla.1975), and Sun Bank of Miami v. Lester, 404 So. 2d 141 (Fla. 3d DCA 1981) seem among the closest to the present situation. See also, Homestead Properties v. Sanchoo, 443 So. 2d 442 (Fla. 3d DCA 1…
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Poinciana Hotel OF Miami Beach, Inc. v. Kasden, 370 So. 2d 399 (Fla. 3d DCA 1979)…e Development Corp. of St. Petersburg v. Bursani, 178 So. 2d 113 (Fla.1965); Kirk v. Van Petten, 38 Fla. 335, 21 So. 286 (1896); Florance v. Johnson, 366 So. 2d 527 (Fla. 3d DCA 1979); Saul J. Morgan Enterprises, Inc. v. 57th Ave. Development Corp., 305 So. 2d 18 (Fla. 3d DCA 1974), cert. denied, 314 So. 2d 586 (Fla.1975); International Expositions, Inc. v. City of Miami Beach, 274 So. 2d 29 (Fla. 3d DCA 1973). For these reasons, it is my view that the action was prematurely filed before default, Kirk v. Va…
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Prudential Ins. Co. OF Am. v. Wynn, 398 So. 2d 502 (Fla. 3d DCA 1981)…lso Home Development Company of St. Petersburg, Inc. v. Bursani, 178 So. 2d 113 (Fla. 1965); Sepielli v. Wilson P. Abraham Construction Corp., 313 So. 2d 122 (Fla. 3d DCA 1975); Sal J. Morgan Enterprises, Inc. v. 57th Avenue Development Corporation, 305 So. 2d 18 (Fla. 3d DCA 1974); All Dixie Insurance Agency, Inc. v. Moffat, 212 So. 2d 347 (Fla. 3d DCA 1968). This result is unaffected by the fact, assumed by the trial judge, that the money in the hands of Tar-sha’s guardian might earn far more interest for…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Home Dev. Co. OF ST. Petersburg, Inc. v. Bursani, 178 So. 2d 113 (Fla. 1965)
- Int'l Expositions, Inc. v. City OF Miami Beach, 274 So. 2d 29 (Fla. 3d DCA 1973)
- Reese v. The State of Fla. ex rel. Malcolm E. Gracy, 212 So. 2d 347 (Fla. 3d DCA 1968)
- All-Dixie Ins. Agency, Inc. v. Moffatt, 212 So. 2d 347 (Fla. 3d DCA 1968)