The opinion which I prepared in this case treated the bill of complaint as one seeking a rescission of the contract of purchase upon the ground of a misrepresentation by the seller of a material fact concerning not the title but the desirability of the property for the purpose for which it was sold. The bill of complaint, although unskillfully prepared, definitely alleges that certain representations which the Company had made to the complainant to induce her to purchase the property which she bought were made to deceive and mislead her and did deceive and mislead and led her to execute the contracts and make the cash payments.

There is no allegation of the bill and no clause in the contract of sale which shows that there were any dependant covenants to be performed concurrently; nor is the *Page 785 case presented upon such a theory. The same reasoning that exists in the majority opinion may be applied to any case where the seller of property agrees to erect certain buildings or make certain improvements where the covenant does not go to the whole consideration of the contract.

If the contract in this case may be considered as a covenant on the seller's part to make certain improvements, the covenants are independent covenants which do not go to the whole consideration of the contract and the breach of them by the seller does not warrant a rescission of the contract by the injured party. That the lots, which were the subject of the contract, were of some value is a proposition which cannot be disputed. The promise of the seller to beautify them and pave the streets and build apartment hotels, churches, lodges and schools were independent promises on the seller's part. There is not a word in the contract which suggests that the payment of the balance of the purchase price of the lots was to be dependent upon the building of the houses and paving of the streets, as the Company agreed to do; nor is there any suggestion either in the bill or the contract that those promises were to be concurrently redeemed.

The logic of the majority opinion is that the purchaser was not required to make a single payment after the initial cash payment until all the promises of the seller had been redeemed even to the beautification of the streets and parkways by the planting of "ornamental shrubbery."

To hold that the independent promises of the contracting parties were dependent covenants to be concurrently performed is to write a new agreement for the parties and to assert that the promise of the seller was the sole consideration for the purchaser's contract.

The opinion prepared by me rested upon the proposition that corporations, engaged in the "development" of subdivision *Page 786 of towns or city blocks, which hold out to the public plans in elaborate and meticulous detail showing as part of the so-called "development" parks, streets, sewers, water and electric facilities and buildings such as churches and schoolhouses as part of its scheme of development are representations of material facts as to the value and desirability of the property for the purpose for which it is sold, and if such representations are false and made to deceive persons whom the company seeks to interest and to whom it expects to sell they constitute a fraud which justifies a rescission of the contract on the part of the injured party.

Such is the doctrine of the cases cited in the opinion which I prepared, some of which were Riverside Investment Co. v. Gibson, 67 Fla. 130, 64 So. R. 439; Nixon v. Temple Terrace Estates, Inc., decided at the present term.

I do not consider the case of Southern Colonization Co. v. Derfler, 73 Fla. 924, 75 So. R. 790, L. R. A. 1917 F. 744 as analogous. In that case Derfler paid a part of the purchase money in cash upon the execution of the contract, the remainder of the purchase price was to have been paid in five yearly installments. The contract expressly stated that the consideration consisted in part of the vendor's written promise that it would construct and operate a line of railroad through the body of land of which the tract purchased was a part within ten miles of the vendee's tract before the due date of the second deferred payment. While the opinion in that case makes some reference to dependent covenants the decision rests upon a different principle, which is that when a failure to perform a contract is in respect to matters which would render the performance of the rest a thing different in substance from what was contracted for the party not in default may abandon the contract; that as the Company had failed to *Page 787 construct and operate the railroad by the date agreed upon it was not capable of conveying to Derfler that which he had contracted to buy.

I am of the opinion that the bill is not wholly without equity on the principle that the representations by the Company were false representations of a material fact upon which the complainant acted to her injury.

So the order should be affirmed.