Opinion
October 19, 1951. Rehearing Denied December 4, 1951.
Appeal from the Court of Record for Escambia County, Ernest E. Mason, J.
Philip D. Beall and Jack H. Greenhut, Pensacola, for appellant.
Kenneth A. White, Pensacola, for appellee.
The appellant filed a bill containing the allegation that the appellee had granted him an option to buy certain property.
It was stipulated that the optionee should have the right to complete the transaction within sixty days by delivering a mortgage to secure the payment in instalments of the difference between the purchase price and an outstanding mortgage to which the property was subject. The plaintiff charged that he advised the defendant he would exercise the option, and that he tendered his mortgage, also a deed to be signed by her, but that she refused to accept the one and to execute the other.
The appellant then amended the bill by alleging that he had "received" an assignment of the unpaid mortgage and that he was "willing to complete the transaction upon the * * * condition that the mortgage to be given to the defendant be superior to the mortgage assigned to him * * *."
The chancellor dismissed the amended bill of complaint "by virtue of lack of mutuality of remedies * * * and by virtue of the fact that plaintiff [had] an adequate remedy at law." The same day he also struck the pleading because he thought an allegation in it "to the effect that plaintiff `has received from Robert H. Kelcy an assignment of the first mortgage against the real property involved [was] not identical with the terms of the condition precedent contained in the option; * * *.'" The chancellor observed "that the foregoing allegation is insufficient performance of the condition precedent of payment and cancellation of the mortgage owned by Robert H. Kelcy and is insufficient tender of payment and cancellation of said mortgage; * * *."
First, we will deal with the motion to strike and the reasons for it. We are unable to agree that there is any lack of indenticalness in the averment and some "condition precedent" in the option because we can't find any such condition expressed in that instrument, or any language from which it can be implied. The phraseology with reference to the purchase price, the manner of payment and the existing mortgage is quite simple. The property was sold for $23,100. Fifty dollars paid for the option was to be credited leaving a balance of $23,050, $9,950 of which was to be paid in monthly instalments of not less than $100 secured "by a mortgage." Then follows this lone sentence about the encumbrance and the mortgage to be given the appellee: "It is understood that the above described property is subject to a First Mortgage to Robert H. Kelcy, having a present balance of Thirteen Thousand One Hundred Dollars ($13,100.00), and it is understood that the amount of the mortgage to the said Allie Carolyn Adams [appellee] shall be Nine Thousand Nine Hundred Fifty Dollars ($9,950.00), representing the purchase price, less the balance due to Robert H. Kelcy * * *." (Italics supplied.)
To us that means that the property was responsible for the outstanding lien and the appellee was simply getting a second mortgage for her equity, else why would the unpaid mortgage be referred to as a "First Mortgage" and the understanding be stated that the sale was "subject" to it? We cannot locate a word even indicating that the appellant was to discharge the obligation to Kelcy before obtaining a deed from the appellee.
If the appellant's averments that he had obtained an assignment from Kelcy, which he was not obligated to do, and that he offered to give the appellee a first mortgage, when she was entitled only to a second one, constitute any inconsistency it is one favorable to her of which she obviously cannot complain. In other words, he would be undertaking to do more than he promised.
The motion to strike was therefore improperly entered.
There are ample allegations that the option ripened into a contract by acceptance of the optionee and in such a situation the remedy of specific performance to enforce compliance with the contract thus formed was available to the appellant, so the motion to dismiss was improperly entered too.
Reversed.
SEBRING, C.J., and CHAPMAN, HOBSON and ROBERTS, JJ., concur.
TERRELL and ADAMS, JJ., not participating.