Opinion
February 23, 1951.
Appeal from the Circuit Court for Pinellas County, Victor O. Wehle, J.
Charles A. Robinson and Charles A. Robinson, Jr., St. Petersburg, for appellants.
Byron T. Sauls, of Fisher Sauls, St. Petersburg, for Otis W. Rose and Virginia M. Rose.
Baya M. Harrison, Jr., of Mann, Harrison Stone, St. Petersburg, for Pinellas Lumber Co., appellees.
Appellants were purchasers of an apartment house property in Pinellas County from the appellees. Appellants will be referred to as vendees, and appellees, vendors.
Vendors listed the property for sale with certain real estate agents in St. Petersburg who furnished, in August, 1949, to the vendees a brochure describing in detail the apartment house property mentioning monthly rentals for the winter season, degree of occupancy, furnishings, location, etc. In the following September appellant, Mrs. McDonald, visited the property at St. Petersburg, at which time a partial vacancy existed which she observed. And about November 1st following, both vendees again visited the property at which time half of the premises were vacant, and on this occasion the contract to purchase was executed; and immediately the vendees moved into one of the apartments, and were given keys to all of the apartments. Some weeks after the contract was executed, during which interim the vendees continously lived on the premises and visited each of the apartments and the tenants of those apartments then being occupied, the transaction was closed, the deed of conveyance delivered to the purchasers, the cash payment made by them and a second purchase money mortgage executed and delivered.
Almost three months later, on January 24, 1950, the vendees filed their Bill of Complaint seeking recision and cancellation of the deed, conveyance, note and purchase money mortgage in the transaction, and other relief, wherein they allege that their purchase was induced by reliance on false and fraudulent misrepresentations of material facts made to them concerning the income, degree of occupancy, furnishings and location of the property. In due course vendors answered the Bill of Complaint; and subsequently they moved for a summary final decree under Equity Rules, rule 40, 31 F.S.A. Thereupon, the chancellor entered a summary final decree in favor of vendors, interlocutory in character, holding that the pleadings and supporting affidavits filed by the respective parties precluded relief to the vendees on the alleged fraudulent misrepresentations concerning degree of occupancy, furnishings and location and environment of the property; ordering, however, that the respective parties present to the chancellor on a certain date at final hearing their testimony and proofs concerning the alleged fraudulent misrepresentations concerning the income of the property. Such testimony and proofs were offered by the respective parties on final hearing before the chancellor, and he thereupon entered a final decree against the vendees, denying the recision and cancellation sought by them; from which vendees appeal.
The pleadings and affidavits disclose that the property was inspected thoroughly by the vendees some sixty days prior to, and again on, the day they executed the contract of purchase; that the vendees resided on the property approximately one week prior to the closing of the transaction when they paid the cash consideration and delivered their note and mortgage to vendors. The chancellor properly held that these opportunities for inspection precluded vendees from recision and cancellation; that vendees' observation on each such occasion that certain apartments were vacant, neutralized any previous representation by vendors that premises had been fully occupied from time of construction to time of sale; likewise, such inspections by vendees deprive them of any right to recision because of representations alleged to have been made regarding the furniture contained in one apartment; and by the same token, any representation contained in the brochure that the apartments were located on a bathing beach rather than on a muddy bayou as alleged, will avail vendees nothing some three months after the transaction is closed.
Testimony and proofs were submitted to the chancellor on final hearing concerning the degree of occupancy and the amounts of rentals collected on the property, and concerning the representations made to vendees prior to consummation of the deal. The record contains substantial proof to support the chancellor in denying recision and cancellation, finding that: * * * the vendees "have failed to sustain the allegations of their bill of complaint. The plaintiffs claim that the defendants, Otis W. Rose and Virginia M. Rose, his wife, had induced the plaintiffs to enter into the purchase of the premises involved by fraudulent misrepresentations as to the amount of income received from the operation of the apartments prior to the purchase thereof by the plaintiffs. The evidence clearly shows that the plaintiffs not only should have known but did actually know that the original representations regarding the income were incorrect and, having such knowledge, they cannot claim that they were deceived into relying upon the original representations. Even if the plaintiffs' claim that the original representations were repeated and affirmed by the defendants after the discovery by the plaintiffs of their inaccuracy, were true, the plaintiffs would still fail to establish a cause of action. As was stated in Feak v. Marion Steamshovel Co., 9 Cir., 84 F.2d 670, 672, 107 A.L.R. 583, 588. `Restatements of the fraudulent representation do not of themselves constitute concealment, and where a party is once put upon notice of fraud he cannot avoid the consequences of his constructive knowledge of the fraud nor fulfill his duty to investigate by going to the party he suspects of the fraud. He cannot desist from further investigation because he is reassured of the truth of the original representations'."
The decree of the lower court is affirmed.
ADAMS and HOBSON, JJ., concur.
CHAPMAN, Acting Chief Justice, concurring specially.
I concur in the opinion and judgment as prepared by Associate Justice OGILVIE in the case at bar and hold that it is fully sustained by our holding in Farnham v. Blount, 152 Fla. 208, 11 So.2d 785, and similar cases. The appellants, as I study the record, had from September until November, 1949, in which to inform themselves, not only as to the true market value of the Rose Apartments, but as to the amount of the net rentals the property reasonably should have been expected to produce. The failure of the appellants to alert themselves in behalf of their own financial interests on pivotal points in a real estate transaction cannot be charged to the law or the courts in construing the law or applying the applicable law to the facts presented.