Opinion
February 1, 1957.
Appeal from the Circuit Court for Broward County, James H. Walden, J.
Ella Jo Stollberg, Hollywood, for appellant.
George Campbell, Miami, for appellees.
This is an appeal by the plaintiff below who assigns as error the final decree sustaining defendants' motions to dismiss the complaint for failure to state a claim showing the plaintiff-appellant to be entitled to any relief in equity, and dismissing the suit.
The complaint sounds in specific performance alleging that the plaintiff Gates and the defendant, W.A. Thompson, entered into a contract wherein it was provided that in consideration of $1,650, to be paid by Gates as therein provided, that Thompson would sell to Gates certain land in Hallendale; that plaintiff Gates had paid Thompson the entire purchase price but Thompson had failed and refused to convey the property to plaintiff. Plaintiff also seeks reformation of the contract as to description.
The complaint further alleges that Thompson has legal title to only an undivided one-half interest in the land with the defendant Ralph Stirrup possessed of the legal title to the other one-half interest; that the land in question is a part of a sub-division platted for such purposes by the defendants Thompson and Stirrup and that the defendants constitute a partnership for the promotion and sale of the subdivision; that activities of Thompson in executing the contract in question, and other like contracts, under like circumstances, in his own name alone and in collecting the money was known and approved by the other defendants. It is further alleged that the value of the land has greatly increased over the purchase price.
A provision of the contract is that "if title prove defective, or in case this contract is not approved by the seller, said deposit to be returned." The initial deposit was $1,000 and Thompson signed the form used as the "seller." The initial deposit nor any other payments appear to have been returned. What relief the plaintiff may ultimately be entitled to is not for this court to decide on this appeal; our present function is to decide whether the complaint states a complaint showing the plaintiff is entitled to any relief in equity. 30 F.S.A. Rules of Civil Procedure, rule 1.8(b) provides that "Every complaint shall be considered to pray for general relief."
We find that claim as stated is not wholly without equity and the decree appealed is reversed.
TERRELL, C.J., and ROBERTS and THORNAL, JJ., concur.