Opinion
No. 70-471.
January 29, 1971. Rehearing Denied March 16, 1971.
Appeal from the Circuit Court, Palm Beach County, Culver Smith, J.
Wallis E. Schulle, of Fisher, Prior, Pruitt Schulle, West Palm Beach, for appellants.
Cecil H. Albury, of Heuer Albury, West Palm Beach, for appellee.
The trial court denied plaintiff purchaser's petition for specific performance of a contract pertaining to the sale of realty. We affirm.
"The rule in Florida is settled that in a suit for specific performance of an alleged contract for the sale of real property, a plaintiff must do more than prove by a preponderance of the evidence that he is entitled to some relief. He must prove the contract as alleged in his complaint by competent and satisfactory proof which must be clear, definite and certain." Tumulty v. Severdija, Fla.App. 1970, 233 So.2d 837, 839. See also 29A Fla.Jur., Specific Performance, §§ 69-72.
Here the trial court decision is supported by evidence that the written contract was silent and vendor had no knowledge of the FHA point discount system which would require her to pay same for the vendee's mortgage and thereby diminish her entitlement to the purchase price of $13,750.00 by approximately $800.00. We believe that this lack and uncertainty was of such magnitude that it may not be overlooked according to any theory of custom and usage or agency.
No abuse of discretion or departure from the essential requirements of law having been demonstrated the judgment on appeal is
Affirmed.
CROSS, C.J., and WALDEN and REED, JJ., concur.