Walker v. Close , 98 Fla. 1103 ( 1929 )

The motion for a rehearing appears to be based upon the assumption that the Court failed to consider one of the points raised by appellee's demurrer, namely: That the bill of complaint is defective in that complainant's demand for an installation of improvements and correction of title as to mortgage encumbrances and as to inchoate right of dower of certain wives of beneficiaries, were united in one demand of complainant.

The alleged defects in title were considered separately in the opinion, one of which was not well founded; the other grounds appeared good as against a demurrer. Therefore, it became unnecessary to analyze defendant's demurrer as to the defects being "united in one demand"; in fact, it appears that the defects were pointed out separately in the demand and notice to appellee.

We know of no rule that where more than one fact is relied upon and alleged in a bill as grounds for cancellation and rescission of a contract, that it will be fatal on demurrer where such objections to the title are included in one demand or notice to the opposite party, and we have not been favored with any authorities to that effect. The authorities examined appear to hold the opposite view.

In 3 Black on Rescission and Cancellation (2nd Ed.), Sec. 664, the general rule appears to be as follows:

"The complainant may also allege as many different grounds for the rescission or cancellation of the contract as he may desire, and the bill is not demurrable because it does not show on which ground he intends to rely, and failure to prove one of the grounds alleged will not prevent recovery on the others."

See also, Murphy v. Crowley, 140 Cal. 141, 73 Pac. R. 820; Fields v. Helms, 70 Ala. 460.

When the bill sets up a case of actual fraud and makes that the ground of the prayer for relief, the complainant is not, in general, entitled to a decree by establishing some one or more grounds quite independent of fraud. 9 C. J. 1249. There is no fraud alleged in the amended bill.

The petition for rehearing is denied and it is so ordered.