
    CHARLES COOPER and FLORENCE COOPER, his wife, v. EMOGENE MAYNARD, also known as Mrs. W. F. MAYNARD.
    23 So. (2nd) 734
    June Term, 1945
    November 2, 1945
    En Banc
    Rehearing denied December 4, 1945.
    
      Abe Arnovitz, Miller & Fitzsimmons, and Jerome H. Weinkle, for appellants.
    
      Davis & Lockhart, for appellee.
   BUFORD, J.:

We are unable to agree with the decree of the court below, because we think the contract of lease including an option to purchase by the lessees was not one on which specific performance could be based in that it was not executed by the husband, Charles Cooper; nor did it purport to be executed by anyone acting as his agent. Such possession as the plaintiffs held was possession under the lease and was not delivery of the property under a contract of sale.

As we read the record, the evidence is insufficient to establish the authority of Mrs. Cooper as agent for her husband to execute the lease, but, on the contrary, the record shows that Mrs. Cooper signed the lease with option to purchase in duplicate and left one copy with the lessees or their agents and took the other copy to Key West for the purpose of having it executed by Charles Cooper. He declined to execute it because of the inclusion of the option to purchase. The property was held by the Coopers as an estate by the entireties and for a contract to be binding it had to be executed by both parties, or by persons in their behalf duly authorized as their agents.

We think the decree should be reversed.

So ordered.

BROWN, THOMAS and SEBRING, JJ., concur.

CHAPMAN, C. J., TERRELL and ADAMS, JJ., dissent.  