Gollnick v. James , 94 Fla. 1231 ( 1928 )

This is an appeal from order overruling a general demurrer to an amended bill of complaint in a suit in which the complainant in the court below sought to recover the sum of $1,000.00 paid under an executory contract to purchase certain lands from the defendants in the court below, and to have decreed a lien on the property embraced in the contract. It was alleged that a breach of the contract had occurred on the part of the defendants by reason of the failure of the vendors, who were the defendants in the court below, to comply with that condition of the contract contained in the following language:

"The seller is to furnish an abstract showing his title to be good and merchantable, but in the event that the title shall not be found good and merchantable, the seller agrees to use reasonable diligence to make the said title good and merchantable, and shall have a reasonable time so to do, and if after reasonable diligence on his part said title shall not be made good and merchantable within a reasonable time, the seller may, at his option, return the money this day paid and all moneys that may have been paid to him under this contract, and thereupon he shall be released from all obligations hereunder."

The order overruling the demurrer should be affirmed on authority of the opinions in the cases of Barclay v. Bank of Osceola County, 82 Fla. 72, 89 So. 357; Musselwhite v. Olson,60 Fla. 342, 53 So. 944, and Wheeler v. Sullivan, 90 Fla. 711,106 So. 876, and it is so ordered.

Affirmed.

WHITFIELD, P. J., AND TERRELL, J., concur.