Sulzner v. Vernon Price-Williams

Citations

• 82 Fla. 199
• 89 So. 540

Syllabus

<p>1. When in a common law action the parties go to trial upon a plea which specifically denies the performance hy the plaintiff of some conditions precedent, and without a joinder of issue upon the plea, it will he assumed that the plaintiff intended to join issue upon the plea and this court will treat the pleadings as if issue had been joined in due form.</p> <p>2. Ther.e can be no recovery upon a cause of action that is variant in substance from that which is pleaded by the plaintiff. The plaintiff must declare upon the contract on which he expects to recover and the proof must correspond to the allegations.</p> <p>3. A contract entered into between S and P whereby it was agreed that S should acquire a certain tract of land at and for a certain sum, that P would divide the tract into a certain number of lots and sell the same at certain stipulated prices on terms named,, and that all moneys received from the sale of the lots should be paid over to S until he had received back the amount paid for the tract and interest, the remainder to be equally divided between them. That to secure the carrying out of the agreement bn P’s part to be performed he executed to S a promissory note for $600.00 payable one year from the date of the agreement, which provided that if the lots were not sold S was to have the right to collect the note at maturity; Held, that P undertook to sell the lots into which the tract was to be divided, upon the terms and for the price stipulated in the agreement within one year from the date of the agreement, and if he failed to do so S should have the right to collect the promissory note.</p>