FINCHER MOTORS, INC., APPELLANT,
v.
CARRIAGE TRADE AUTO BROKERS, INCL, AND JACK D. WOLF, APPELLEES
FINCHER MOTORS, INC., APPELLANT,
CARRIAGE TRADE AUTO BROKERS, INCL, AND JACK D. WOLF, APPELLEES
421 So. 2d 673
Florida District Court of Appeal, Third District (1982)
Positive Treatment
Cited by 4 cases
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Opinion of the Court
PER CURIAM.
Although appellee Jack Wolf may eventually establish that he is not personally obligated to appellant under the provisions of section 673.403(2)(b), Florida Statutes (1979),* he has not done so within the complaint itself. See Parkway General Hospital, Inc. v. Allstate Insurance Co., 393 So. 2d 1171 (Fla. 3d DCA 1981). We therefore hold that the trial court erred in dismissing the complaint, and we reverse and remand for further proceedings.
Reversed and remanded.
*
Section 673.403(2)(b), Florida Statutes (1979) states:
(2) An authorized representative who signs his own name to an instrument:
(b) Except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity. (emphasis added).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bank OF Cent. Fla. v. Zellwood Farmers Mkt., Inc., 543 So. 2d 455 (Fla. 5th DCA 1989)…DCA 1978). Although the Fishers may eventually establish that they are not personally liable on the note,1 they have not done so at this stage and the complaint should not have been dismissed. See Fincher Motors, Inc. v. Carriage Trade Auto Brokers, 421 So. 2d 673 (Fla. 3d DCA 1982) (although maker may eventually establish that he was not personally obligated to payee on instrument, maker had not done so within complaint and therefore dismissal of the complaint was error). Since the complaint should not have…
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Yates v. Commercial Bank & Tr. Co., 432 So. 2d 725 (Fla. 3d DCA 1983)…a. 3d DCA 1979), it is obviously in the nature of an affirmative defense, and thus cannot justify the dismissal of the complaint. Sanchez v. Mercy Hospital, 386 So. 2d 42 (Fla. 3d DCA 1980); Fincher Motors, Inc. v. Carriage Trade Auto Brokers, Inc., 421 So. 2d 673 (Fla. 3d DCA 1982). Reversed. . The emphasized material is in McDonald’s handwriting; the remainder is printed. . The appellant does not claim that the bank is liable merely for paying an estate check to the fiduciary himself. On the facts allege…
Authorities Cited
- Parkway Gen. Hosp., Inc. v. Allstate Ins. Co., 393 So. 2d 1171 (Fla. 3d DCA 1981)