
    TARAN DISTRIBUTING, Inc. v. ALLEN.
    Supreme Court of Florida. Division A.
    Oct. 27, 1953.
    
      Thompson, McDonald & Moran, Tampa, for petitioner.
    McLean & McLean, Tampa, for respondent.
   MATHEWS, Justice.

This is a petition for writ of certiorari to review an order denying motion to dismiss a bill of complaint. The relief sought was a cancellation of a retain title contract involving some coin-operated phonographs, on the ground of fraud, and representations and promises not contained in the written contract.

It appears that the total purchase price of the machines was $1798.75. On October 28, 1952, $800 was paid on account on the purchase price and an additional $200 on October 29, 1952. The machines were delivered to the respondent on November 4, 1952. The actual retain title contract was executed on November 13, 1952. It, therefore, appears that respondent had the machines in his possession where he could inspect them and do with them as he pleased from November 4, 1952, until November 13, 1952, at which time respondent executed the retain title contract. It also appears from the bill of complaint that the first monthly payment due under the retain title contract on December 10, 1952 was paid by the respondent. The bill of complaint for rescission and cancellation was not filed until June 3, 1953, at which time the respondent was six months in default in his payments on the retain title contract.

Although the bill of complaint contains allegations of fraud and misrepresentation, such allegations are insufficient as a basis for rescission and cancellation without further allegations on the part of respondent in view of the fact that he had the machines in his possession several days prior to the execution of the contract, made one monthly payment on December 10, 1952 while still having the machines in his possession, and was six months in default before he brought his bill for rescission and cancellation.

Certiorari is granted, and it is ordered that the order denying the motion to dismiss the bill of complaint be and the same is hereby quashed, and an order be entered dismissing the bill of complaint, with leave to amend, within such time as may be fixed by the Chancellor.

ROBERTS, C. J., and TERRELL and SEBRING, JJ., concur.  