Opinion
No. 58-146.
September 9, 1958. Rehearing Denied October 8, 1958.
Appeal from the Civil Court of Record for Dade County, David J. Heffernan, J.
Miller Stichler, No. Miami Beach, for appellant.
Kommel Rogers, Miami Beach, for appellees.
The defendant appeals from a summary final judgment in an action by the plaintiffs to recover plaintiffs' deposit upon a contract to purchase a residence to be built by defendant. The court had before it the contract and the correspondence between the parties. No genuine issue as to any material fact is shown to exist. Therefore, the only question is whether the plaintiffs were entitled to recover under the law.
It affirmatively appears from the correspondence between the parties that there was considerable misunderstanding as to the representations made by the defendant at the time the contract was made. Several attempts to resolve the matter were made but none were carried out. Thereupon the defendant proposed to complete the house and return the deposit after he sold the property. Although this specific offer was not expressly accepted, no other solution was worked out. The defendant admits that he subsequently sold the property but alleges loss of profit because the house was tailored for plaintiffs.
The plaintiffs paid for something that they did not get. The judgment is affirmed under authority of the rule stated in Moss v. Condict, 154 Fla. 153, 16 So.2d 921; cf. Calhoun v. Corbisello, Fla. 1958, 100 So.2d 171. See Moore v. Boyd, Fla. 1952, 62 So.2d 427.
Affirmed.
CARROLL, CHAS., C.J., and HORTON, J., concur.