Opinion
July 31, 1951. Rehearing Denied October 5, 1951.
Appeal from the Circuit Court, Dade County, George E. Holt, J.
Myers, Heiman Kaplan, Miami, for appellant.
Robert C. Lane and Curtiss B. Hamilton, Miami, for appellees.
This appeal is from a final decree dismissing without prejudice a bill seeking specific performance.
The bill was filed in March 1949 to enforce a contract in writing dated in April 1948 for the purchase and sale of two lots, each having an apartment building thereon.
The bill alleged in substance that shortly after the contract was executed and prior to the delivery or tender to plaintiff of an abstract, Marland Corporation, a Delaware corporation, the owner and holder of a second mortgage encumbering the real property, commenced a suit for foreclosure; and that, thereafter, at the request and with the knowledge and consent of the defendants, plaintiff entered into several contracts for the resale of the same property for the purpose of enabling the defendants to procure funds to satisfy the second mortgage. Plaintiff also alleged that with the knowledge and consent of the defendants he negotiated with one Sam Fine to sell him one of the apartment buildings and that sale to Sam Fine was, in fact, consummated and the proceeds thereof paid to defendants or their agent.
Plaintiff alleged, upon information and belief, that the purchaser, Sam Fine, paid to defendants or their agent, for the one apartment building, cash in the approximate sum of $30,700; that it was understood and agreed by and between the plaintiff and the defendants that out of the sale of the property to Sam Fine so much thereof as might be necessary would be used to satisfy the existing second mortgage held by Marland Corporation and to dismiss the foreclosure brought by said Marland Corporation; but that the second mortgage held by Marland Corporation had not been satisfied nor had the foreclosure suit been dismissed. The present action, therefore, was to obtain specific performance as to the remaining apartment building, coupled with a prayer for an accounting to determine the amount of cash necessary to pay defendants.
The answer admitted the contract and the existence of the second mortgage. It denied any default in the mortgage and claimed the foreclosure of same was premature. The defendants also denied agreeing that plaintiff might negotiate a resale to satisfy the second mortgage as alleged in the bill. The answer also alleged that plaintiff had not tendered the agreed price for the property and had in no respect evidenced an ability or intent to consummate the sale.
Testimony was taken before a special master who made findings of fact, the substance of which disclosed the bill had been proven. The master declined to recommend specific performance, however, because the evidence did not show the indebtedness due on the first and second mortgages. For that reason the master recommended that the suit be dismissed without prejudice or to enter an order permitting supplemental proceedings, citing Tyson v. Aikman, 159 Fla. 273, 31 So.2d 272.
Plaintiff and defendants both filed exceptions to the report and recommendations. The defendants asserting in the exceptions that the evidence did not support the conclusions of fact found. The plaintiff asserting that the master erroneously recommended dismissing the suit without prejudice because having found a valid and enforceable contract and a partial performance in that, the parties by mutual agreement having sold one of the two lots and it now appears that there is nothing left to be ascertained except the amount of money to be paid, a decree of specific performance should be granted; that jurisdiction should also be retained to take an accounting of the sum due since a predicate was duly made in the bill for an accounting.
The trial court overruled all exceptions and dismissed the bill without prejudice and plaintiff has appealed.
Plaintiff poses the question that the chancellor, having accepted the master's findings of fact, committed an error of law in failing to grant a decree of specific performance. See Winn Lovett Grocery Co. v. Safford Bros. Produce Co., 121 Fla. 833, 163 So. 681; Randall v. Randall, 158 Fla. 502, 20 So.2d 238; Nelson v. Beverly Beach Properties, Inc., 47 So.2d 310.
Defendants countered this by asserting that the findings of fact by the master were not sustained by the evidence; that the evidence was not brought before us on this appeal; that the presumption of correctness attached to the decree until appellant has shown error by the evidence. We cannot accept this contention. Defendants have not cross assigned error on the denial of their exceptions. Since the adoption of our rules in 1941 it is presumed by us, unless the contrary is made to appear, that the record transmitted here contains all matter material to the questions before us. See Supreme Court Rule 11(10), 30 F.S.A. Anything said by us in cases prior to the effective date of this rule relating to this matter, is therefore, no longer pertinent. This appeal presents only a question of law. The existence of the contract and its partial performance was found. The matters giving rise to the uncertainty of the amount to fulfill the contract occurred through defendants' failure to keep current their mortgage. Plaintiff's failure to tender the balance due is understandable because of the pending foreclosure against defendants on the property and finally by defendants' flat refusal to live up to the contract. In the meantime, plaintiff, by defendants' acquiescence and agreement, has negotiated a sale of a part of the property to the credit and benefit of defendants pursuant to the original contract.
Instead of dismissing the suit without prejudice the courts should have granted the relief prayed and ordered an account to be made of the sum necessary to pay the balance due on the contract.
The decree is reversed for further proceedings.
Reversed.
SEBRING, C.J., and CHAPMAN and THOMAS, JJ., concur.