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Law School Case Brief

Collier v. Fox - 49 So. 2d 801 (Fla. 1951)


Mere repossession by the seller of goods sold that have been returned to him or abandoned by the buyer does not of itself necessarily effect or evidence a mutual rescission of the sale. Evidence of an agreement to rescind must be clear, positive, unequivocal, and inconsistent with the existence of the contract, and it is not enough to merely recognize that the purchaser has broken the contract and refused to proceed further with it. 


Sellers Collier, et al. sued buyer Fox for damages for breach of a contract  in relation to the purchase and sale of a liquor business owned by the sellers. A few days after the buyer had given a check to the sellers as a binder on the purchase and in part payment of the purchase price of the business, the buyer stopped payment on the check. The buyer filed a demurrer which was sustained by the trial court. The trial court entered judgment in favor of the buyer. The sellers appealed.


Did the trial court err in its decision to sustain the demurrer and to enter judgment in favor of buyer?




The Supreme Court of Florida reversed the judgment of the trial court and remanded the case. According to the court, the buyer's contention that the sellers' acceptance of redelivery of the business with the consent of the buyer was not sufficient to show that the parties mutually agreed to rescind the contract. The court ruled that sellers’ declaration stated a cause of action for damages for breach of contract, and the trial judge erred in entering final judgment on demurrer. The sellers alleged in their declaration that at the time of the repudiation by the buyer, the seller had performed and were able and in a position to carry out and perform each and every covenant and agreement was sufficient to plead the claim.

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