SEAVIEW AWNING SHUTTERS OF MIAMI, INC., A FLORIDA CORPORATION, APPELLANT,
v.
E. M. EISFIELD, INC., A FLORIDA CORPORATION, APPELLEE
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Seaview Awning Shutters appeals a summary judgment entered against it on a breach of contract claim. The appellant's defense of accord and satisfaction, based on an alleged new written contract, failed because the evidence showed only unaccepted offers or proposals rather than a binding agreement.
No genuine issue of material fact remained. The correspondence constituted only unaccepted offers or proposals, not a binding new contract, so the accord and satisfaction defense could not be sustained and summary judgment was properly entered.
“At this stage of the proceedings, the only disputed issue under the pleadings was the alleged existence of a new written contract.”
Establishes what issues were properly before the court based on the pleadings and thus what could be considered on summary judgment.
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Join FLexlaw to unlock all legal intelligenceThe parties had an original written contract. Appellee sued for breach, and appellant admitted executing the original contract but asserted an affirma…
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This is an appeal from a summary judgment entered in favor of the appellee which awarded a money judgment on a liquidated claim. The appellant, defendant below, takes this appeal alleging a dispute as to material issues of fact which would preclude a summary judgment.
The amended complaint alleged a written contract between the parties and a subsequent breach by the appellant. The answer of the appellant admitted the execution of the written contract sued upon and raised the affirmative defense of accord and satisfaction. Specifically, the appellant alleged that the parties created a new contract under different terms. This contract was alleged to be written- and consisted of correspondence between the parties. At this stage of the proceedings, the only disputed issue under the pleadings was the alleged existence of a new written contract.
The appellee moved for summary judgment with an affidavit attached which denied any new contract. The appellant responded with affidavits which, in substance, claimed a misrepresentation by the appellee of the quality of the items sold under the contract, and the existence of an oral contract between the parties. Neither of these issues was raised by the pleadings and therefore were beyond the scope of the issues involved. Cf. Fink v. Powsner, Fla.App., 108 So.2d 324. The appellee filed a counter-affidavit to which were attached exhibits consisting of the correspondence between the parties. At best, the exhibits were offers or proposals-which were never accepted by the appellant. It was clearly demonstrated by these-exhibits that the appellant’s defense of accord and satisfaction could not be sustained: in fact and therefore no genuine issue of' any material fact remained for determination.
The appellant did not attempt to amends its answer so as to create the new issues set out in the affidavits. On motion for summary judgment, the only genuine issue of a material fact was as to the existence-of a new written contract between the parties. The appellant offered nothing to rebut the showing made by the appellee’s affidavits and exhibits which conclusively showed the non-existence of a new contract.
Affirmed.
CARROLL, CHAS., C. J., and PEARSON, J., concur.
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McKIBBEN v. Hardware Mut. Cas. Co., 110 So. 2d 455 (Fla. 2d DCA 1959)…PER CURIAM. Affirmed. See Seaview Awning Shutters of Miami, Inc. v. E. M. Eisfield, Inc., Fla.App.1958, 106 So. 2d 597, and Fink v. Powsner, Fla.App.1958, 108 So. 2d 324. KANNER, C. J., SHANNON, J., and STURGIS, WALLACE E., Associate Judge, concur.…
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Allstate Ins. Co. v. Arlyne Flickinger, 322 So. 2d 638 (Fla. 3d DCA 1975)…pon the question of coverage for Trapini under the Allstate homeowner’s policy and that question may be further litigated in the trial court. See Wells v. Thomas, Fla.1956, 89 So. 2d 259; Seaview Awning Shutters v. E. M. Disfield Inc., Fla.App.1958, 106 So. 2d 597; 19 Fla.Jur. Judgments and Decrees, § 7; and 30 Fla. Jur., Summary Judgment, §§ 12 and 29. Therefore, for the reasons stated and upon the authorities cited, the partial summary judgment appealed is reversed and remanded for further proceedings. Rev…
Authorities Cited
- Fink v. Ira L. Powsner, 108 So. 2d 324 (Fla. 3d DCA 1958)