Skipper v. Handley , 98 Fla. 1253 ( 1929 )

As I understand this bill, it is brought, not to rescind and cancel an existing contract, but to remove a cloud resulting from the recording of a contract which had been previously terminated in accordance with the terms of such contract. In such a case, the doctrine announced in Taylor v. Rawlins does not apply. See Realty Securities Corporation v. Johnson,93 Fla. 46, 111 So. R. 532; Chubb v. Chadwick, 93 Fla. 114, 111 So. R. 538; Wilson v. Daniel, 115 So. R. 527, 94 Fla. 1140. This made it unnecessary for the bill to allege that the complainant had returned or offered to return the partial payments made, in order to entitle the complainant to the removal of the cloud by the cancellation of the record of the contract.

It may be that the original option contract set out in the bill had become merged into a contract of sale, but even so, the terms of the contract of sale were necessarily identical with the terms of the option contract which had merged into it by acceptance of the option, at least in so far as such terms were not changed or modified by subsequent agreement between the parties. Orlando Realty Board v. Hilpert, 113 So. R. 100,93 Fla. 954. The original option contract of May 11, 1925, provided that time should be of the essence of the contract, and that unless a certain amount was paid by July 1, 1926, such failure to pay would automatically and without notice cancel and annul the contract and such moneys as had been paid should be retained by the complainant as rent, etc. The agreement of February 10, 1926, did not, as I understand that agreement, change or modify these clauses of the original option. These facts, and the general purpose and prayer of the bill, in my opinion, take it out of the class to which the doctrine enunciated in Taylor v. Rawlins applies.

STRUM, J., concurs.