Summary
granting "partial performance" which included conveyance of the property with abatement of the purchase price where seller/contractor refused to finish construction after buyer had already moved in just because he considered buyers "undesirable members of the community"
Summary of this case from Haisfield v. Fleming, Haile ShawOpinion
July 10, 1951.
Appeal from the Circuit Court for Volusia County, Herbert B. Frederick, J.
Ray Selden, Daytona Beach, for appellants.
John S. Byington, Daytona Beach, for appellee.
The appellants and appellee entered into a written contract for the purchase and sale of certain land and the construction of a house thereon by appellee, for a total contract price of $3,516. Under the provisions of the contract, the appellee agreed to have the house completed and ready for occupancy on November 8, 1947. On October 29, the appellant James A. Presley moved all his furniture into the uncompleted house and began living there the next day with his wife and 14-year-old daughter. The appellants had at that time paid $1,016 under the contract, the balance to be covered by a mortgage on the premises to be executed at the time of the conveyance thereof. Thereafter, a dispute arose between the parties, and the house was never completed by the appellee. The appellants, however, continued living in the house, and in July of 1948 the appellee instituted proceedings in the County Court to evict the appellants. The appellants then filed suit in the Circuit Court of Volusia County seeking to enforce the specific performance of the above-mentioned contract by the appellee. The appellee defended on the ground that he had been prevented by the appellants from completing the contract, and prayed that specific performance be denied and that a sum representing the reasonable amount of rental of the premises during appellants' occupancy be set off against the amount ($1,016) paid under the contract by appellants.
Testimony was taken and transcribed by a Special Examiner; and the trial court, upon consideration of the pleadings and the record, and after hearing the argument of counsel, entered his final decree adjudging the equities to be with the appellee, denying specific performance of the contract, and cancelling the same. He further decreed that the sum of $1,016, paid by appellants under the contract, be refunded to them, less a charge for rent at the rate of $20 per month, amounting to $700. It is from this final decree that appeal has been taken.
There is some dispute as to the facts surrounding the appellants' moving into the house, the appellants contending that they moved in with the consent of the appellee, and the appellee contending that he denied them permission to live in the house prior to its completion. The appellee admits, however, that he gave appellants permission to move all their furniture into the house on October 29. It is also admitted that the house was about 75 percent complete, it having been fully plastered and painted, the rough plumbing and electrical wiring completed, and that there remained only the setting of the doors and windows, the plumbing and electrical fixtures, and connecting the water, for completion. It also appears that the work required to complete the house could have been accomplished in the seven or eight days remaining under the contract.
The reasons given by the appellee for denying the appellants permission to live in the house, although he had permitted their moving their furniture therein, were two: (1) that it would be impossible, or at least inconvenient, for his workmen to finish up the job while appellants were living there; and (2) that there were no sanitary facilities on the premises. We are not persuaded that the presence on the premises of the appellant and his family would add appreciably to the inconvenience, authorized by appellee, of having the furniture on the premises. Moreover, the presence of Mr. Presley appeared to be desirable, in that he agreed to move the furniture from room to room for the convenience of the workmen. The fact that there were no sanitary facilities on the premises loses its force in the face of appellee's testimony that he had previously authorized other vendees to move in prior to the completion of their houses, and it was uncontradicted that at least one of these houses had no sanitary facilities in it at that time.
Taking, then, the appellee's testimony as true, it does not appear that he has made out a very strong case justifying his refusal to complete the construction of the dwelling; and that, while he may have refused them permission to move in, his reason for doing so was because he discovered, on the day that the appellant moved his household effects to the new premises, that appellants owned a flock of chickens which they were planning to maintain on the premises, and a cow (which was, however, removed the next day), and that he considered the appellants undesirable members of the community and sought, from the outset, to avoid his bargain — all of which may be reasonably inferred from the testimony adduced by the appellants. It may be here noted that the appellants were not, by law or by deed, prohibited from raising chickens on their premises.
On the side of appellee, however, there is some evidence that the appellants refused to allow the appellee on the premises after the hostility developed between them; but there is no evidence that they ever refused to let him complete the dwelling nor that appellee ever offered to do so — the appellee adhering staunchly to his position that he would not complete it as long as the appellants were living therein, and the appellees just as firmly refusing to move out.
Because of the lapse of time and the fact that construction costs have doubled — and since the appellants were not completely without fault — we must agree with the learned Chancellor that a decree holding the appellee to the strict performance of the contract would be inequitable; but we cannot agree that the equities are all on the side of the appellee. The higher cost of construction and the increase in land values operates against the appellants, as well as the appellee; and, as we have shown, his refusal to complete the dwelling while the appellants were living in it was, at least, contrary to his policy towards other vendees and might almost be said to be arbitrary and unreasonable, under the circumstances here present.
It appears, then, that the more equitable solution to the problem would be to decree a partial performance of the contract, that is, a conveyance of the property and the unfinished dwelling, with an abatement of the purchase price sufficient to compensate the appellants for the cost of completing the building, plus interest on the amount due under the contract after such abatement. This, in effect, leaves the parties in the impasse in which the court found them, that is, the appellants retain possession of the property in its unfinished condition, but the appellee is relieved of his obligation under the contract to complete the dwelling. The appellee testified that at the time the appellants moved into the dwelling it would have cost $500 to complete it; and the appellants have, at the bar of this court, offered to accept that figure as the amount required to complete it. After deducting this amount, the sum of $2,000 represents the balance of the abated purchase price. This was, of course, due at the time the appellants moved into the house, and the appellee is entitled to interest thereon at 6 percent, the rate specified in the contract, from that date, to wit, October 29, 1947. In this manner, the original contract is partially performed without substantial injury to either party.
For the reasons stated, the final decree is reversed, with directions to the lower court to enter a decree in accordance with this opinion.
Reversed and remanded with directions.
TERRELL, CHAPMAN and THOMAS, JJ., concur.
SEBRING, C.J., and ADAMS and HOBSON, JJ., dissent.
I cannot say that the Chancellor abused his sound judicial discretion in denying specific performance.
SEBRING, C.J., and ADAMS, J., concur.