Dale v. Jennings , 90 Fla. 234 ( 1925 )

The misleading conduct of Dale had relation to the identity of the vendor rather than to the nature and values of the properties involved in the transactions. Fraud without injury is not remediable; (See 26 C.J. 1167; 25 C.J. 187); and fraud may be waived. 27 C.J. 22. Jennings took over the properties without seeking to rescind the purchase after he discovered the inequitable conduct of Dale. On the showing made, the identity of Jennings' vendor may be relatively immaterial, and Dale's conduct of no injury to Jennings, if the properties were of good title and were then of materially greater value than the amount of the first payment made to Dale. The price Dale agreed to pay his vendor for the properties may not be conclusive of their real value at the time of sale. Dale's conduct precludes specific performance in equity (Busch v. Baker, 79 Fla. 113,83 South. Rep. 704), but it might not, under all the facts and circumstances of the transaction, exclude him from some relief upon due allegations and proofs of good titles and fair values for the properties that were actually received and kept and not fully paid for by Jennings after he discovered and complained of the misleading conduct of Dale. See Thompson v. Newell,118 Mo. App. 405, 94 S.W. Rep. 557; Vlates v. Catsigianis (Mo. App.), 202 S.W. Rep. 441; 27 C.J. 100.

ON REHEARING. 1. Where the members of the appellate court are equally divided in opinion as to whether a judgment, decree or order on appeal or writ of error should be reversed or affirmed, and there is no prospect of a change of judicial opinion in the premises or of an immediate change in the personnel of the court, the judgment, decree or order should be affirmed, so that the litigation may not be unduly prolonged.

2. Where the members of the Supreme Court sitting six members in a body after full consultation are equally divided in opinion as to whether or not a judgment should be reversed, and there is no prospect of an immediate change in the personnel of the court, it becomes the duty of those who favor reversal to vote with those who favor affirmance and thereby affirm the judgment of the lower court. In such a case, while the judgment is a bar to another action for the same cause, yet, as no matters of law are decided so far as the questions upon which the court is equally divided are concerned, the judgment possesses no dignity or force as a judicial precedent as to such matters.

Decree affirmed.

Robert E. Davis and Cooper, Cooper Osborne, for Appellant.

Hocker Martin and Geo. C. Bedell, for Appellees.

ON REHEARING.