Charlotte J. L'Engle, Appellant, v. Walter Overstreet et al., Appellees, 64 Fla. 339

Whitfield, C.

J. (after stating the facts). — On the former appeal from an interlocutory order, it was held that the contract on which specific performance is prayed is upon its face a lease of land for a specific term with the privilege of paying for and procuring a conveyance of the land at any time within the period of the lease that the promise of the lessees to pay the purchase price is by other provisions of the contract so qualified as to the time and conditions of its payment that the promise cannot be enforced after the expiration of the lease period; and that the mere tender of the purchase price after the expiration of the lease period does not entitle the lessees to a specific performance of the contract that had expired by its own limitations, where no controlling equity is shown.

And the opinion expressly indicates that if the payment of a part of the purchase price is shown, it might be a controlling equity entitling the complainants to specific performance even though the express contract time had expired a few days, before the tender of the purchase price due was made, the complainants being in possession of the land. L’Engle v. Overstreet, 61 Fla. 653, 55 South. Rep. 381. This adjudication is the law of the case.

The right of the complainants to so amend the bill as to show any controlling equity in their behalf was recognized by the former opinion herein, and that right does not appear to have been lost. The demurrer presents only the question of the sufficiency in law of the allegations of the amended bill asserting an equity for specific performance. The demurrer admits the allegations of the amended bill of complaint to the effect that the purchase price-agreed on for the conveyance of the land was $3,000.00- and that $1,000.00 of the amount was paid before the contract was executed.

This fact gives to the complainants an equitable interest in the land and affords a controlling equity for enforcing a specific performance of the contract to convey, even though the contract time had expired by a few days, there being nothing to indicate that the substantial rights in the land acquired by the complainants in paying a third of the purchase price had been in any way lost to them.

The allegations as to the payment of a third of the real purchase price of the land do not seek to vary the terms of the written contract, since that feature of the transaction was not covered by the contract; and proof of the real purchase price and of the payment of a part thereof and the enforcement of right resulting therefrom, do not in any way vary the terms of the written contract. If an equity appears from the allegations of the bill of complaint, defects, if any, in the prayer do not render the bill insufficient for appropriate relief.

Many of the allegations of the amended bill of complaint are prolix and contain statements of contemplated evidence rather than of ultimate facts. This is not good practice. A bill of complaint should contain a clear and direct statement of the ultimate facts upon which relief is sought, and should not contain mere statements of evidence. The order appealed from is affirmed. Taylor, Shackleford and Cockrell, J. J., concur. Hocker, J., absent because of illness.