
    LURALINE PRODUCTS CORPORATION, a Florida corporation, Appellant, v. ARCHITECTURAL LIGHTING, INC., a Florida corporation, Appellee.
    No. 67-189.
    District Court of Appeal of Florida. Third District.
    Feb. 20, 1968.
    Rehearing Denied March 11, 1968.
    
      Myers, Kaplan & Porter, Miami, for appellant.
    Richard L. Lapidus, Miami, for appellee.
    Before PEARSON, BARKDULL and SWANN, JJ.
   PEARSON, Judge.

The appellant, who was defendant in an action for alleged wrongful garnishment and malicious prosecution, appeals a final judgment for the plaintiff, appellee. Appellant originally sued appellee and secured the issuance of several writs of garnishment before judgment. The appellee maintained that the suit was baseless and that the garnishment was wrongful, because appellant held a check issued in full payment. Appellant claimed a larger amount.

It was agreed by the parties through their attorneys on December 30, 1965, that the appellee would waive its claimed right of action for malicious prosecution and wrongful garnishment if appellant would dismiss the suit and have the writs of garnishment dissolved by December 31, 1965. The record reveals that this was not accomplished on the date specified because of the New Year holidays and certain court procedures. Nevertheless, the suit was dismissed and the writs of garnishment dissolved on January 7, 1966. The check held by appellant was negotiated on January 18th.

The appellee instituted the present suit for malicious prosecution and wrongful garnishment on February 4, 1966. The appel-lee did not disavow the settlement of the original suit.

The principle that one who- wishes to rescind a contract must do so within a reasonable time so that the parties may, so near as is possible, be restored to their original rights has been often recognized in Florida. See Columbus Hotel Corp. v. Hotel Management Co., 1934, 116 Fla. 464, 156 So. 893; Ganaway v. Henderson, Fla.App.1958, 103 So.2d 693. It affirmatively appears from this record that appellee accepted the benefits of the delayed dismissal of the original suit and then disavowed the agreement because of late performance. The appellant, as defendant, was entitled to a directed verdict at the close of all the evidence and the denial of its motion for such has been assigned as error.

Reversed.

BARKDULL, Judge

(dissenting).

I respectfully dissent. In this case, the defendant appeals from an adverse final judgment entered on a jury verdict. The complaint by the plaintiff in the trial court sounded in tort, alleging malicious prosecution and wrongful garnishment.

The record reveals that while Luraline Products Corporation held a check in full payment of outstanding balances due from Architectural Lighting, Inc., and when the principal officer of Luraline had no reason to doubt the validity of the check, it caused a proceeding to be instituted in the Civil Court of Record seeking to collect the full balance of its outstanding account plus attorney’s fees, which it alleged it was entitled to because of certain notations contained on delivery tickets. Upon four writs of garnishment being issued and executed, counsel for the respective parties arrived at a settlement of the matter, which indicated that Luraline was (1) not entitled to collect any attorney’s fees, (2) that the check in its possession was good, and (3) that the garnishment had been wrongfully issued. Counsel confirmed their settlement with a letter, as follows:

“In consideration of your obtaining an Order dismissing any writs of garnishment issued in that case now pending in the Civil Court of Record captioned Luraline Products Corporation, a Florida corporation v. Architectural Lighting., Inc., etc. (65-7200) the defendant, agrees not to bring any action or claim against the plaintiff or its attorneys on account of the issuance of the writs of garnishment. The Order must be entered by Friday, December 31, 1965.
“Please mail a copy of the Order to each of the persons that you served a writ of garnishment upon.”
* * * * * *

Notwithstanding the provision contained therein that Architectural would give up any rights of which it might be possessed in the nature of a wrongful garnishment or malicious prosecution action in the event the writs were discharged by December 31st, [Luraline failed to perform until January 7th] the instant action was then instituted in the trial court on the two theories as indicated, and the jury returned a verdict in favor of the appellee for compensatory and punitive damages. The appellant has preserved several points for review on appeal. The principal thrust of the appellant’s argument on appeal is that there was a settlement of the civil court of record action, and this should have prevented the subsequent action sounding in tort. I do not agree.

There was an offer to settle upon certain conditions. Contained in the offer was a recognition of a right to sue for malicious prosecution or wrongful garnishment, which right Architectural would give up in exchange for the writs of garnishment being dissolved by December 31st. The writs were not dissolved by such date and, therefore, Luraline should have remained liable for any tortious conduct. The appellant contends that notwithstanding the admitted failure to secure the dismissals by December 31st, they ultimately received a benefit. Brite v. Orange Belt Securities Co., 133 Fla. 266, 182 So. 892; C. W. Kistler Co. v. Hotel Martinique, Inc., Fla.1950, 44 So.2d 288; Hoffman v. Barlly, Fla.App.1957, 97 So.2d 355; Adler v. Segal, Fla.App.1959, 108 So.2d 773; Edgar v. Joseph Breck & Sons Corp., 172 Mass. 581, 52 N.E. 1083; Vol. 1, Corbin on Contracts, § 71.

It was no benefit for the appellee tó have the writs of garnishment continued beyond December 31st. As long as they were outstanding, its credit reputation was being affected and the effect of the delay was to continue the prejudicial writs. I would affirm. 
      
      . The only testimony in the record concerning the circumstances of the agreement was the testimony of the attorney who represented appellee for the purpose of negotiating the termination:
      “Q. As a result of those conversations and/or correspondence, did you arrive at a settlement of this lawsuit, or agreement to terminate this law suit.
      “A. Yes, sir. I wrote him a letter in connection with that lawsuit.
      * * * * *
      “A. This letter contains what we agreed to.
      * * * * *
      “A. I wouldn’t have written the letter if it was possible to comply by December 31, 1965, because I didn’t have any authority to extend the time any further.”
     