In this case appellees filed a bill in equity against the appellant, Peninsula Terminal Company, seeking to rescind an executory contract for the purchase of certain described real estate. The grounds relied on for the rescission were certain alleged fraudulent representations charged to have been made by one Richard A. Johnson, an alleged agent of the vendor, as an inducement for the entering into the contract by the vendees. The answer of the defendant denied the agency of Johnson with respect to the representations and voluminous testimony was taken on that issue. The relationship of the supposed agent, Johnson, to the defendant Company, concerning the subject matter of the contract and the representations involved, therefore became one of the material questions which the Chancellor was required to decide in this cause as a question of fact.
The Master, appointed and empowered to make findings of law and fact, found that the contract of purchase entered into by the complainants, Charles W. Zaring, and his wife, Helen Zaring, were entered into as a result of misrepresentations of material facts chargeable to the defendant company; that the lot or property contracted to be sold was and is not suitable nor desirable for the purpose for which it was represented and undertaken to be sold; that it would be contrary to equity and good conscience to enforce the contract as entered into by Zaring and his wife by requiring Zaring to pay the balance of the purchase *Page 89 price; that on the contrary complainants should have the relief of rescission prayed for in the bill.
The master's findings were approved by the Chancellor in all particulars and a decree was entered by the court which released and relieved the complainants from any and all liability arising out of the rescinded contracts and promissory notes executed contemporaneously therewith and as part of the consideration therefor. In addition to relief by way of rescission, the court entered a further decree adjudging that the defendant, Peninsular Terminal Company, repay to the contracting parties the sum of $7,053.34 representing moneys advanced to the defendant company under the rescinded contract and the interest thereon. An equitable lien upon the vended property for the amount of this money decree was adjudicated in complainant's favor and foreclosure of same ordered to satisfy the amounts determined to be due. The appeal is from the final decree.
A majority of the Court are of the opinion that the decision of this case is controlled by that long line of authorities emanating from this Court wherein it has been declared that the findings of a master in chancery, approved by the Chancellor and sustained by him as the basis for his final decree, will not be reversed in this Court unless it is made to appear that the findings of fact are clearly erroneous. See E. O. Painter Fertilizer Co. v. Foss, 107 Fla. 464, 145 Sou. Rep. 253 and cases cited. It is further the opinion of a majority of the Court that the findings of the Chancellor in this case have not been demonstrated to be clearly erroneous, in view of the fact that there is substantial, competent evidence to sustain the complainant's contention that one Richard A. Johnson, while acting as agent of the defendant company, did in fact and in law, as such agent, make the false and fraudulent misrepresentations *Page 90 charged as having been made by him and calculated to deceive complainants in the premises.
Included in the decree was an allowance of interest at the rate of eight per centum per annum from the date of the making of the payments made by complainants on the contract allowed to be rescinded, instead of interest from the date of the institution of the suit by which the rescission was sought to be accomplished. The amount of interest decreed was $2,138.34 which was computed as from the date of the payments made under the contract and not from the date of the rescission, which in this case was the date of the institution of the suit. To the extent that the allowance for interest exceeds an amount computed from the date of the institution of the suit, the decree is erroneous and should be reversed with directions to modify the decree by allowing interest on the sum of $4,815.00, the aggregate of complainant's payments, only from the date of the institution of this suit.
In administering the remedy of rescission and cancellation of contracts for misrepresentations occurring in the inducing factual situation which has led up to the execution of the particular contract whose rescission and cancellation is sought, the fundamental theory on which equity acts is restoration, and in order to obtain such relief the complainant must offer to do equity and must do equity toward the defendant. Everglade Cypress Co. v. Tunnicliffe, 107 Fla. 675, 148 Sou. Rep. 192; Bryan v. Duncan, 106 Fla. 357, 143 Sou. Rep. 353. In the present case the first step in complainant's election to disaffirm the transaction in which the contract and notes sought to be rescinded and cancelled were given, was the institution of the present suit and no interest on the amounts paid under the contracts should be decreed for periods of time prior to the date of *Page 91 the institution of the present proceeding, because the rescission and cancellation which has been brought about by the decree that has been entered, does not relate back further than the date of the institution of the suit in this case.
Final decree affirmed in part and reversed in part, costs of appeal to be charged in equal proportions against the parties.
DAVIS, C. J., and WHITFIELD, ELLIS, TERRELL and BROWN, J. J., concur.
BUFORD, J., dissents.