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NIAGARA OF FLA v. NIAGARA THERAPY MFG

District Court of Appeal of Florida, Second District
Mar 3, 1970
231 So. 2d 277 (Fla. Dist. Ct. App. 1970)

Summary

In Niagara of Fla., Inc. v. Niagara Therapy Mfg. Corp., 231 So.2d 277 (Fla. 2d DCA), cert. denied, 237 So.2d 763 (Fla. 1970), the court observed the general rule that a contract for a person's "lifetime" is not within the statute of frauds because "the contract could have been terminated prior to the expiration of one year"; nevertheless, the court found the verbal lifetime contract in that case to be barred by the statute of frauds.

Summary of this case from Hesston Corp. v. Roche

Opinion

No. 69-36.

January 14, 1970. Rehearing Denied March 3, 1970.

Appeal from the Circuit Court for Pinellas County, Allen C. Anderson, J.

David F. Patterson, of Bryson Patterson, St. Petersburg, for appellants.

Paty, Downey, Lewis Daves, Palm Beach, for appellees.


The trial Court was correct in rendering its final judgment against the appellants-plaintiffs upon motion for directed verdict at the conclusion of appellants' case, and concluding that the oral contract sued upon was within the Statute of Frauds, F.S. § 725.01, F.S.A.

Appellant Harrison testified that it was the intent of the parties that performance of the contract would extend at least three years. We affirm the judgment appealed on authority of Yates v. Ball, 1937, 132 Fla. 132, 181 So. 341; Markowitz Bros., Inc., v. John A. Volpe Const. Co., D.C.S.D. Fla. 1962, 209 F. Supp. 339; Dove Sheet Metal, Inc. v. Hays Heating Plumbing Co., D.C.N.D.Fla. 1966, 249 F. Supp. 366; Rattan Bamboo Shop, Inc. v. Rutter, Fla.App. 1962, 147 So.2d 11; Manas v. Southern Diversified Industries, Inc., Fla. App. 1967, 193 So.2d 480; Tanenbaum v. Biscayne Osteopathic Hospital, Inc., Fla. App. 1965, 173 So.2d 492; Fla. 1966, 190 So.2d 777.

Appellants contend that the Statute of Frauds is not applicable in this case because the contract was for the appellant Harrison's lifetime, relying on Exchange National Bank of Tampa v. Bryan, 1936, 122 Fla. 479, 165 So. 685; Berger v. Jackson, 1945, 156 Fla. 251, 23 So.2d 265; and Schenkel v. Atlantic National Bank of Jacksonville, Fla.App. 1962, 141 So.2d 327. The theory of these decisions is that "since death is uncertain, the contract could have been terminated prior to the expiration of one year." This principle is not applicable to the case sub judice. The appellant Harrison testified that the parties contemplated that it would take about three years to pay the $25,000.00 for the purchase of the stock of the Niagara Sales Corporation, "at which time or the end of time we had finished paying, according to that agreement, we would have a lifetime contract in the sale of Niagara merchandise in the State of Florida" and "the oral contract will come into effect, wherein I receive the franchise, from the time I complete paying for the stock." There is no showing in the record that the contract could have been completed upon the death of Harrison prior to the expiration of one year. To the contrary, the lifetime contract was not to "come into effect" until he "had finished paying" the $25,000.00 for the stock.

Appellants' remaining point has been examined and does not present a basis for reversal. The trial Court granted the motion for directed verdict also on the basis that appellants' claim was partly written and partly oral. The written agreement was marked for identification but was never introduced in evidence, nor was it even alleged in appellants' complaint. During cross-examination of Harrison, the following colloquy occurred:

"Q. Just so I am sure, the $25,000.00 that you refer to as that having paid for the franchise is the same $25,000.00 that has been set forth in the agreement that you have just identified, is it not?

A. Yes, sir.

* * * * * *

Q. Is there any connection between the written agreement and the oral contract? Doesn't this go together?

A. One is contingent upon the other, yes, sir."

The judgment appealed herein is

Affirmed.

HOBSON, C.J., and MANN, J., concur.


Summaries of

NIAGARA OF FLA v. NIAGARA THERAPY MFG

District Court of Appeal of Florida, Second District
Mar 3, 1970
231 So. 2d 277 (Fla. Dist. Ct. App. 1970)

In Niagara of Fla., Inc. v. Niagara Therapy Mfg. Corp., 231 So.2d 277 (Fla. 2d DCA), cert. denied, 237 So.2d 763 (Fla. 1970), the court observed the general rule that a contract for a person's "lifetime" is not within the statute of frauds because "the contract could have been terminated prior to the expiration of one year"; nevertheless, the court found the verbal lifetime contract in that case to be barred by the statute of frauds.

Summary of this case from Hesston Corp. v. Roche
Case details for

NIAGARA OF FLA v. NIAGARA THERAPY MFG

Case Details

Full title:NIAGARA OF FLORIDA, INC., A FLORIDA CORPORATION, AND EDWARD HARRISON…

Court:District Court of Appeal of Florida, Second District

Date published: Mar 3, 1970

Citations

231 So. 2d 277 (Fla. Dist. Ct. App. 1970)

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