Opinion
February 16, 1951. Rehearing Denied March 16, 1951.
Appeal from the Circuit Court for Dade County, William A. Herin, J.
Roland J. Lavelle, Irving F. Kalback and Anderson Nadeau, Miami, for appellants.
J.F. Gordon and L.G. Egert, Miami, for appellees.
This cause comes here for the second time. A complete statement of the facts and contentions of the respective parties is accurately set forth in Fote v. Reitano, Fla., 46 So.2d 891. On the former appeal the final decree entered below was reversed and our mandate directed that a final decree be entered not inconsistent with the views and conclusions reached. Pursuant thereto the Chancellor below entered its final decree in conformity with the terms and provisions of our mandate.
On the present (or second) appeal it is contended that the $7,000 paid on the purchase price of "Nick's Wheel Alignment Service" should, by the provisions of the final decree pursuant to our mandate, be returned to the Reitano brothers, appellants. Pertinent parts of the contract of purchase are viz.: "It is hereby expressly agree that this transaction shall be completed and the Purchaser shall pay the balance due and execute all papers necessary to be executed by him or her for the completion of the transaction within 14 days from the date hereof (December 17, 1947). All parties hereby agree that the Broker will retain the amount of the deposit if same does not exceed the Broker's compensation, providing the Seller is ready, able and willing to comply with Vendor's obligations and Buyer refuses to perform. If Purchaser is ready, able and willing to comply and Seller for any reason fails to comply as agreed, then and in that event the Seller will become legally obligated to pay the Broker the full amount of his commission of 10% of said purchase price for his services herein approved as performed. It is furthermore hereby distinctly and clearly understood by all parties to the transaction that there are no promises, inducements, assurances, guarantees, warranties, representations, solicitations, either express or implied, oral or written, except those recited and contained herein. This Agreement is binding upon all parties, their legal representatives or assigns."
The purchasers referred to in the above contract of purchase declined or refused to abide by the provisions of their agreement and filed suit or bill of complaint in equity praying for a cancellation of their contract of purchase for various reasons. This bill of complaint was dismissed in the Court below pursuant to our mandate and, during the time or period of litigation, the vendor or seller named in the contract of purchase sold Nick's Wheel Alignment Service business to another purchaser. The only question involved on this appeal is as to whom should the $7,000 be paid? It is not disputed that this sum was paid by the Reitano brothers under the contract of purchase which they refused or declined to comply with. The decree appealed from directed that the $7,000 be paid to the vendor or appellee, Nick Fote, or his attorneys of record.
Counsel for appellants contend that the award of $7,000 to the vendor Fote was erroneous and in conflict with many of our adjudications which are cited in their brief. We have carefully reviewed the authorities cited and hold that they are not applicable to this controversy, but the following language of this Court in Realty Securities Corp. v. Johnson, 93 Fla. 46, 111 So. 532, 536, is controlling:
"`No rule in respect to the contract is better settled than this: That the party who has advanced money, or done an act in part-performance of the agreement, and then stops and refuses to proceed to its ultimate conclusion, the other party being ready and willing to proceed and fulfill all his stipulations according to the contract, will not be permitted to recover back what has thus been advanced or done.' * * *
"`While forfeitures are not favored, either in law or equity, it is equally true that neither law nor equity favors the negligent, nor do they hold out a premium to the careless, or one who shows anything else than a prompt and ready disposition to comply with his undertaking.'"
The appellant failed to establish reversible error on the record and therefore for this reason the decree of the lower Court is affirmed.
SEBRING, C.J., and CHAPMAN, ADAMS and ROBERTS, JJ., concur.