FOLSOM v. HOFFMAN, ET AL., 100 Fla. 1369 (1930)

131 So. 318

SPENCER A. FOLSOM, Plaintiff in Error, v. ANDREW HOFFMAN and FRANK MARINKO, Defendants in Error.

Supreme Court of Florida, Division A.
Opinion filed November 26, 1930.

A Writ of Error to the Circuit Court for Polk County; Harry G. Taylor, Judge.

Reversed.

Page 1370

Robert T. Dewell, Maxwell Cobbey and W. Wallace Shafer, for Plaintiff in Error;

Walker King and Allen E. Walker, for Defendants in Error.

PER CURIAM. —

Defendants in error as plaintiffs below recovered a judgment against plaintiff in error for breach of contract in the sum of five thousand eight hundred ninety-seven and twenty-two one-hundredths ($5,897.22) dollars. Writ of error was taken to the judgment.

It is contended here that error was committed in sustaining objection to the testimony of the witness, Spencer A. Folsom, that plaintiffs had not made payment of $17,300 or tendered such payment in accordance with the terms of the contract, and in granting the motion of plaintiff for a directed verdict as to counts one and four of the declaration.

Counts one and four of the declaration raised the question of what is a reasonable time allowance for the cancellation of the contract on failure to comply with the terms thereof, no definite time being stated therein, and what would be a reasonable time allowance for making the title brought in question marketable. Evidence was submitted on these questions that should have gone to the jury. Directing a verdict on them was, therefore, error for which the cause must be and is hereby reversed. Jenkins v. Lykes, 19 Fla. 148, 156; Haile v. Mason Hotel Investment Company, 71 Fla. 469, 71 So. R. 540; 13 C. J. 791; S. A. L. Ry. Co. v. Scarborough, 52 Fla. 425, 447, 42 So. R. 706; 38 Cyc. 1525.

Reversed.

Page 1371

TERRELL, C. J., and ELLIS and BROWN, J. J., concur.

WHITFIELD, P. J., and STRUM and BUFORD, J. J., concur in the opinion and judgment.