On May 11, 1948, we considered this case and reversed the judgment. On June 1, we granted a rehearing and now proceed to a consideration of the case on rehearing granted. A full statement of the case is made in the opinion of Associate Justice WHITE when first considered and, therefore, further elaboration will not be made here.
Upon further study of the case we are convinced that the judgment appealed from should be affirmed.
The law of our state favors liberality in amendments to pleadings. We cannot say that the trial judge abused its discretion in allowing the change of the action from deceit to assumpsit. Any harm which might have come to defendant as a result thereof lay in forcing him to plead instanter and proceed with the trial. Defendant might well have asked for time to plead to the new action. This he did not do. He may not then later complain because he took his chance in pleading instanter and proceeding with the trial.
The doctrine of election of remedies will not avail appellant. Plaintiff, in fact, had no remedy in deceit. See Capital City Bank v. Hilson, 64 Fla. 206, 60 So. 189; Williams v. Robineau, 124 Fla. 422, 168 So. 644.
In this case the parties contracted for the use of a property which use was not allowed by law. Whether both or either knew of such zoning law makes no difference because the consideration wholly failed and the money paid for the contract should be returned and the parties mutually released. See The American Law Institute's Committee on Restatement of the Law of Contracts, Vol. II, page 677, Sec. 372.
For these reasons the judgment appealed from is affirmed.
TERRELL, CHAPMAN and HOBSON, JJ., concur.
THOMAS, C. J., SEBRING, J., and WHITE, Associate Justice, dissent. *Page 795