DECO PURCHASING & DISTRIBUTING CO., INC., APPELLANT/CROSS-APPELLEE,
v.
MARY PANZIRER, INDIVIDUALLY, APPELLEE/CROSS-APPELLEE, AND HARRY A. WARD, III, AS SUCCESSOR PERSONAL REPRESENTATIVE OF THE ESTATE OF JAY ROBERT PANZIRER, APPELLEE/CROSS-APPELLANT, AND FLORIDA NATIONAL BANK AT ORLANDO, N.A., APPELLEE
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Deco Purchasing sued for restitution of an advance on consulting fees paid to Jay Panzirer, who died before rendering any services. The trial court ruled in favor of Panzirer's widow Mary, but the appellate court reversed, holding that Deco was entitled to restitution because there was a complete failure of consideration.
Deco is entitled to restitution of the advance payment. A person who contracts to render personal services is discharged by death from rendering such services, but restitution must be made of all monies paid in advance for services not rendered. Because Panzirer died before any services could be rendered, there was a complete failure of consideration.
[1] Death of a party to a contract for personal services discharges the obligation to render those services.
[2] When a party to a contract for personal services dies before rendering the agreed-upon services, restitution must be made of any advance payments received for the period…
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Join FLexlaw to unlock all legal intelligence“One who contracts to render personal services is discharged by death from rendering such services, but restitution must be made of all monies paid to him in advance for the period in which the agreed services had not been rendered.”
Establishes the fundamental principle that death discharges performance obligations but triggers restitution requirements for advance payments
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Join FLexlaw to unlock all legal intelligenceJay Panzirer requested and received an advance from Deco for his monthly consulting fee covering April, May, and June 1982. Panzirer died on March 31,…
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ORFINGER, Chief Judge.
This appeal is from a final judgment in favor of defendant, Mary Panzirer on a claim for restitution filed by plaintiff, Deco Purchasing & Distributing Co., Inc. Because we find a total absence of competent, substantial evidence to support the trial court’s judgment, we reverse.
It is clear and uncontradicted that Jay Panzirer requested and received from Deco an advance of his monthly consulting fee for April, May and June, 1982. He died on March 31, 1982, before the check for the advance was written, and before he was able to render any services for which the fee was paid. The check was received by Panzirer’s secretary after his death, and in accordance with his instructions, was deposited into an account in the joint names of Panzirer and his wife Mary, the appellee here.
One who contracts to render personal services is discharged by death from rendering such services, but restitution must be made of all monies paid to him in advance for the period in which the agreed services had not been rendered. 6 Corbin on Contracts, § 1368. Because Panzirer died on March 31, and the advance was for three months beginning April 1, no services were or could be rendered, and Deco is entitled to restitution. There was a complete failure of consideration, and in such instance, restitution of the monies paid is a proper remedy. Southeast First National Bank v. Taines, 339 So. 2d 275 (Fla. 3d DCA 1976).
Whether the action be referred to as one for restitution or one for “money had and received,” an action may, in general, be maintained whenever one has money in his hands belonging to another which in equity and good conscience, he ought to pay over to that other. Moss v. Condict, 154 Fla. 153, 16 So. 2d 921 (1944); First State Bank of Fort Meade v. Singletary, 124 Fla. 770, 169 So. 407 (1936); Moore Handley, Inc. v. Major Realty Corporation, 340 So. 2d 1238 (Fla. 4th DCA 1976). Because the check was deposited to an account owned jointly by Jay Panzirer and his wife Mary, she now has the funds which rightly belong to Deco.
The judgment is reversed and the cause is remanded with directions to enter judgment for Deco. In the light of this ruling, the cross appeal by the successor personal representative of Jay Panzirer’s estate agreeing that the money does not belong to Mary but contending that it is an asset of the estate, is moot.
REVERSED and REMANDED.
FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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In re Standard Jury Instructions-Contract & Bus. Cases, 116 So. 3d 284 (Fla. 2013)…er.” Sharp v. Bowling, 511 So. 2d 363, 364-65 (Fla. 5th DCA 1987). 2. A claim for money had and received may be based upon a wide variety of grounds including: (1) upon consideration which has failed, Deco Purchasing & Distributing Co. v. Panzirer, 450 So. 2d 1274, 1275 (Fla. 5th DCA 1984); (2) for money paid by mistake, First State Bank of Fort Meade v. Singletary, 124 Fla. 770, 169 So. 407 (1936); (3) for money obtained through imposition, extortion, or coercion, Cullen v. Seaboard Air Line R. Co., 63 Fla.…
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Sharp v. Bowling, 511 So. 2d 363 (Fla. 5th DCA 1987)…a. 153, 16 So. 2d 921 (1944); First State Bank of Fort Meade v. Singletary, 124 Fla. 770, 169 So. 407 (1936); Bishop v. Taylor, 41 Fla. 77, 25 So. 287 (1899); Gordon v. Camp, 2 Fla. 422 (1849); Deco Purchasing and Distributing Co., Inc. v. Panzirer, 450 So. 2d 1274 (Fla. 5th DCA 1984); Moore Handley, Inc. v. Major Realty Corp., 340 So. 2d 1238 (Fla. 4th DCA 1976). Though this remedy is an action at law, it is equitable in nature and is founded upon the equitable principle that no one ought to be unjustly enric…
Authorities Cited
- First State Bank of Fort Meade v. Norah D. Singeltary, 124 Fla. 770 (Fla. 1936)
- Moss v. Condict, 154 Fla. 153 (Fla. 1944)
- Moore Handley, Inc. v. Major Realty Corp., 340 So. 2d 1238 (Fla. 4th DCA 1976)
- Ladell Spann v. State, 339 So. 2d 275 (Fla. 2d DCA 1976)