Nelson v. Jacques

Pattison, J., delivered the opinion of the Court. O. H. Nelson, Jr., the appellant, brought suit against Lancelot Jacques, Sr., and Alice B. Jacques, his wife, the appellees, upon a promissory note executed and delivered by them to' Nelson-Bullock-Klingensmith, Inc., for the sum of $8,800, dated March 5th, 1925, payable in three years thereafter, which by assignment became the property of the appellant, who at the time of its execution and at the time of the trial was the president of the Nelson-Bullock-Klingensmith Company. In addition to the general issue pleas, the appellees filed other pleas by which the defense was made that, in the transaction for the sale of certain real estate in Florida, by the ¹⁹⁹ Helson-Bullock-Xlingensmith Company to the appellee, Lancelot Jacques, Sr., in which the note sued on was given in part payment of the pitrchase money therefor, the said company agreed to purchase from the appellee, Lancelot Jacques, Sr., three lots of land at the price therein named, which agreement “formed a part of the consideration for the sale of the said real estate * * * to Lancelot Jacques, Sr.,” and, although he was at all times ready and willing to convey the lots of said company or its assigns, it refused to purchase them and thereby comply with the terms of said agreement, in consequence of which he suffered loss and damage, which, as •claimed by him, he was entitled to recoup against the indebtedness evidenced by the note. In the trial of the case, the defendants produced in evidence the written memorandum of sale for said real estate, .and in it is found the following clause: “To consummate this deal, we agree to buy of L. Jacques (3) Riverside Park Pront Lots in Titusville, adjoining this tract for $3,000 •each, cash in 60 days.” It was then shown by the evidence of Lancelot Jacques that, although a deed conveying these three lots was tendered to the appellant, the president of the company, and the then holder of the note, he refused to accept the deed and comply with the agreement contained in the memorandum of sale to purchase these lots, and he ever thereafter refused to comply therewith.

The lots were afterwards, in January, 1926, sold by Jacques, with other land owned by him, for $500 each. Of the purchase money of $5,700 for the real estate mentioned, all was paid except the amount of the note sued on. At the conclusion of the evidence, the plaintiff offered ten prayers and the defendant four, but all were rejected. In lieu thereof, the court prepared an instruction, and stated to the parties that, if either of them objected to it, he would submit the case to the jury without instructions.

Ho objection was made or exception taken thereto by either of them, so far as the record discloses, and the case was submitted to the jury upon this instruction of the court. ²⁰⁰ • The prayers offered by the defendants do not appear in the record, and only two of the appellant’s, his first and second prayers, are found therein, both of which asked for a directed verdict for the plaintiff. The trial resulted in a verdict for the defendants, upon which a judgment for costs was entered in their favor. It is from that judgment that this appeal is taken. It is only on the rulings of the court in rejecting the first and second prayers of the plaintiff that the case comes to this court.

By the plaintiff’s first prayer the court was asked to instruct the jury “that under the evidence in this case no defense has been made by the