Citations
- 164 So. 2d 572
Full opinion text
TILLMAN PEARSON, Judge.
D. & G., Inc. and Desser and Garfield,. Inc., appeal a final decree adjudicating an indebtedness of approximately $5,700,000.00' to the appellee, Bankers Life and Casualty Company and foreclosing a mortgage which secured the indebtedness by encumbering some 1500 acres of unimproved land in Dade County, Florida. This land composed a part of Carol City. In addition, the appellant D. & G., Inc., assigns as error that portion of the final decree which granted relief to the defendants-appellees, Virginia Properties, Inc. and Heftier Construction Company upon a cross-claim filed against the defendant-appellant D. & G., Inc. This cross-claim sought damages resulting from a breach by D. & G., Inc., of its covenant in a vendor-vendee agreement between D. & G., Inc. and the cross-claimants to keep the mortgage with Bankers Life in good standing.
The mortgage sought to be foreclosed contained a provision whereby, upon written request by D. & G., certain portions of the encumbered property were to be released upon the payment of specified sums. This release clause provided for releases in exchange for payments of both principal and interest.
The appellant D. & G. obtained releases for a period of time until it defaulted on the mortgage. Sometime in October of 1958 the mortgage was reinstated by the payment of approximately $637,000.00. At that time the appellant D. & G. contended it was entitled to releases upon the basis of this payment but appellee Bankers Life refused to accept the payment upon such a basis. Thereafter the appellant D. & G. did not demand in writing any releases based upon said payments.
On July 22, 1959, Bankers Life and D. & G. entered into a written agreement. The concluding paragraph of which is as follows:
“13) Having thus settled all of the other matters between us, we acknowledge that at the moment of our signing and your signing this letter with us you have delivered to us all of the releases we have previously called upon you in writing to deliver to us.” [“We” referring to D & G and “you” referring to Bankers.]
In the period of time from the making of the agreement last referred to, until the institution of the suit to foreclose the mortgage, the defendant-appellant D. & G. paid for and secured releases in a substantial amount under the agreement of July 22, 1959, which provided that releases should be given only for payments of principal. The basic attack of the appellants on the final decree of foreclosure is that the chancellor erred in finding that the defendant-appellant D. & G. was in default because it could not come into default when the plaintiff mortgage holder was already in default by its failure to deliver releases for the $637,000 payment made in October of 1958. We hold that this position is untenable. The evidence supports the chancellor’s decree for several reasons.
First, it appears without controversy that releases were to be delivered only upon written request. The defendant-appellant has failed to prove written requests -were submitted as required. This situation is sought to he explained by the appellant upon the theory that because releases had upon occasion been delivered without written request; therefore, this provision of the mortgage was waived. The record does not support this allegation. The proof of such waiver and estoppel must be clear and convincing. See: Jarrard v. Associates Discount Corp., Fla.1957, 99 So.2d 272; Boynton Beach State Bank v. Wythe, Fla.App.1961, 126 So.2d 283.
Secondly, the appellant cannot prevail under its contention that the plaintiff-mortgagee was in default for failure to deliver releases for the $637,000 payment because the agreement itself acknowledges the receipt of all releases properly requested in writing. Appellant suggests that the agreement is ambiguous because it says “all releases we have previously called upon you in writing to deliver t