MAXWELL DAUER AND REVA B. DAUER, HIS WIFE, APPELLANTS,
v.
GENERAL HEALTH SERVICES, INC., APPELLEE

Fla. 3d DCA | 1975-07-22
No. 74-1571
Before PEARSON, HENDRY and HAVERFIELD, JJ.
317 So. 2d 456 Florida District Court of Appeal, Third District (1975) Positive Treatment
Cited by 5 cases

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Synopsis

The Dauers sold land to General Health Services under a contract requiring them to provide preliminary plans, soil tests, and specifications within 30 days. The sellers provided only schematic drawings insufficient for obtaining financing commitments or cost estimates. The trial court found the sellers breached a material condition precedent, and the appellate court affirmed the buyer's right to recover its $25,000 escrow deposit.


Holding

The sellers breached the condition precedent and were in default because they failed to provide the required soil tests and provided only schematic drawings lacking the necessary detail to estimate construction costs or obtain institutional lender commitments. The buyer was entitled to recover its $25,000 escrow deposit.


Headnotes

[1] A party must substantially perform conditions precedent to a contract to recover for performance.

[2] Failure to provide required soil tests constitutes a breach of a purchase and sale agreement.

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Key Quotes

“It is elementary that there must be at least a substantial performance of conditions precedent in order to authorize a recovery as for performance of a contract.”

Establishes the legal standard for enforcing conditions precedent in contracts.

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Facts & Procedural History

In June 1971, General Health Services contracted to purchase land from the Dauers for hospital construction. The amended contract required the sellers…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellants, defendants in the trial court, appeal an adverse final judgment awarding plaintiff its escrow deposit of $25,000.

In June 1971, plaintiff General Health Services, Inc., appellee herein, entered into a written contract with the appellants, Maxwell and Reva Dauer, to purchase from them certain land for the purpose of constructing a 172 bed hospital. Pursuant thereto, plaintiff deposited $25,000 which was to be held in escrow in the First National Bank of Hialeah. This purchase and sale agreement was amended on July 2, 1971 to provide, inter alia:

* * * * *

“2. That within 30 days from date hereof the Sellers will furnish Purchaser with preliminary plans and specifications and a soil test. The same shall be subject to Purchaser’s approval. Said preliminary plans and specifications shall be in sufficient detail to enable Purchaser to:

“(a) Obtain a commitment from an institutional lender for a construction loan satisfactory to Purchaser;

“(b) To enable Purchaser within a reasonable degree of accuracy to estimate the cost of construction of the hospital; and

“(c) To obtain tentative approval of all governmental agencies having jurisdiction in the premises.”

* * * * *

At meetings held on July 19 and 20, Maxwell Dauer presented two color renditions and some drawings entitled Scheme A and Scheme B to Doctor Brotman, an officer of plaintiff corporation, and to Herbert Chanen, plaintiff’s general contractor. Plaintiff-appellee found these drawings insufficient in detail to enable it to estimate the cost of construction or to obtain a commitment from an institutional lender for a construction loan. The 30 day period having elapsed and no additional plans having been submitted, plaintiff demanded return of its deposit which was refused. Thereupon, plaintiff instituted the instant action to obtain its $25,000 deposit. Defendants answered and filed a counterclaim alleging plaintiff defaulted on the contract by failing and refusing to close the transaction. After the conclusion of a non-jury trial, the trial judge determined that defendants had breached the condition precedent (set out hereinabove) and were in default and plaintiff was not in default. The judge then entered final judgment awarding plaintiff its escrow deposit of $25,000. This appeal follows.

Defendants contend on appeal that the trial court erred in finding and holding that they breached the July 2, 1971 contract by failing to perform a material condition thereunder. We cannot agree.

It is elementary that there must be at least a substantial performance of conditions precedent in order to authorize a recovery as for performance of a contract. Cohen v. Rothman, Fla.App.1961, 127 So. 2d 143.

First, it is undisputed that defendants did not provide the soil tests as required.

Second, there is an overabundance of evidenice in the record to support the conclusion that the drawings furnished Dr. Brotman and Herbert Chanen merely were schematic drawings and did not contain the necessary information to estimate the cost of construction or to obtain a commitment from an institutional lender for a construction loan. Thus, we find that defendants did not perform substantially the condition precedent.

We also reject the argument of appellants that had plaintiff chosen either Scheme A or B they could have prepared the contractually mandated plans and specifications and, therefore, they are excused from the breach of the condition precedent because defendants created their own obstacle to performance which they could have removed or avoided. See Metropolitan Dade County v. Babcock Company, Fla.App.1973, 287 So. 2d 139; Maritime Construction Company v. Benda, Fla.App.1972, 262 So. 2d 20.

Accordingly, the judgment appealed is affirmed.

Affirmed.


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Citator

Cited By

  • First Prudential Dev. Corp. v. Hosp. Mortg. Grp., 390 So. 2d 767 (Fla. 3d DCA 1980)
    …1964). Accord, Restatement (Second) of Contracts § 251, Comment b (1973); 5 Williston, A Treatise on the Law of Contracts § 699 (3d ed. 1961); contra, Thomson v. Kyle, 23 So. 12, 39 Fla. 582 (1897); see also, Dauer v. General Health Services, Inc., 317 So. 2d 456, 457-58 (Fla. 3d DCA 1975); Maritime Construction Co. v. Benda, 262 So. 2d 20, 22 (Fla. 1st DCA 1972). The ruling of the court below which resolved the liability issue in appellee’s favor is reversed; we similarly reverse that portion of the order…
  • Ferguson v. Ellis Rubin LAW Offs., P.A., 559 So. 2d 80 (Fla. 3d DCA 1990)
    …by competent substantial evidence, we reverse. “It is elementary that there must be at least a substantial performance of conditions precedent in order to authorize a recovery as for performance of a contract.” Daver v. General Health Svcs., Inc., 317 So. 2d 456, 457 (Fla. 3d DCA 1975) (citation omitted). Here, there is no evidence that ERLOPA performed as it agreed to in the retainer agreement. The record shows that Ferguson contracted for legal services with ERLOPA. Neither ERLOPA nor Ellis Rubin ever ent…
  • …(Fla. 4th DCA 1971) (citing 3A CORBIN ON CONTRACTS § 702 et sequi). “[T]here must be at least a substantial performance of conditions precedent in order to authorize a recovery as for performance of a contract.” Dauer v. Gen. Health Servs., Inc., 317 So. 2d 456, 457 (Fla. 3d DCA 1975) (citing Cohen v. Rothman, 127 So. 2d 143 (Fla. 3d DCA 1961)). Whether a party substantially complies with or performs a contract condition is an issue of fact to be determined by the fact finder. See Huertas v. Avatar Prop.…

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