This case is before us again. For former decisions herein see Major Holding Corporation v. Butler, 138 Fla. 633, 190 So. 15 (decided June 16, 1939), and Butler v. Major Holding Corporation, 145 Fla. 549, 200 So. 96 (decided October 4, 1940).
In the original case of Butler v. Major Holding Corporation in the trial court, Butler alleged in his amended bill that when Major Holding Corporation exercised its option of declaring the entire contract due, plaintiff immediately notified defendant corporation that he was ready, able and *Page 554 willing to pay the full amount of rent that might be due under said contract, and also that he was ready and desired to exercise the option of purchase; and that plaintiff was ready, able and willing to pay the entire purchase price of said property, and tendered same to defendant corporation, but defendant refused to accept same and stated that it wanted the property.
The amended bill prayed that defendant be restrained from dispossessing him; that the said sums due defendant be determined; that the lease be reinstated and plaintiff be entitled to retain possession of the property; and plaintiff also prayed for all other, further and different relief, both general and special, to which he is entitled and which to the court shall seem meet.
Decree pro confesso was entered against defendant corporation for failure to plead or answer in the time allotted. This decree pro confesso was confirmed by the final decree. The final decree also found that plaintiff in June, 1936, tendered to the defendant the full amount necessary to purchase said property according to the terms of the option, and that defendant corporation refused to accept the tender and refused to comply with the terms of the option agreement under an illegal claim that plaintiff had forfeited his rights under the contract. The final decree held that defendant corporation should execute to plaintiff a warranty deed conveying the property, upon plaintiff either executing to defendant notes and a mortgage on the property in the sum of $2,614.57, or by tendering defendant cash in the sum of $2,481.57.
On appeal here we held in Major Holding Corporation v. Butler, 138 Fla. 633, 190 So. 15 (decided June 16, 1939), that the final decree was affirmed in all respects, except as to the finding that the option to purchase was exercised in conformity with the terms of the contract. We held that it *Page 555 was prematurely exercised, but that such premature exercise was notice of intention to exercise the option at the proper time. In other words, that final decree settled the rights of the parties at that time as to all matters adjudicated by that final decree, except as to the exercise at the proper time of the option to purchase, which we held was prematurely exercised. That final decree found in effect that at the time plaintiff made the tender to defendant Corporation in June, 1936, there existed no default on plaintiff's part, in any material particular, such as would preclude him from exercising his option to purchase. That part of the final decree was affirmed here. It thus became the law of the case and is not now controvertible.
The case was then remanded and the way left open for plaintiff, by appropriate proceedings, to amend his amended bill to show performance of all conditions precedent. This did not mean that issues settled by that final decree were to be reopened and retried. Only that space of time between the tender made by plaintiff and the date when the option could have been exercised was in controversy in regard to performance of conditions precedent. Performance of such conditions precedent prior to the tender made by plaintiff had been settled by the final decree below and the decision on appeal here.
The decision in the case of Butler v. Major Holding Corporation, 145 Fla. 549, 200 So. 96 (decided October 4, 1940), is therefore in entire accord with the decision rendered in the case of Major Holding Corporation v. Butler, 138 Fla. 633, 190 So. 15 (decided June 6, 1939), and the petition for rehearing is denied.
It is so ordered.
BROWN, C. J., WHITFIELD, TERRELL, BUFORD and CHAPMAN, J. J., concur.
THOMAS and ADAMS, J. J., not participating. *Page 556