LARNEL BUILDERS, INC., A FLORIDA CORPORATION, APPELLANT,
v.
JOHN NICHOLAS, TRUSTEE IN BANKRUPTCY OF C. B. S. EXCAVATORS, INC., APPELLEE
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Larnel Builders appeals a trial court decree awarding a contractor's lien to appellee for construction work and equipment rental. The appellate court affirmed, holding that oral modifications to written contracts are permissible when the parties have accepted and acted upon the modification in a manner that would work fraud if unenforced.
The trial court did not err. First, equity courts properly have jurisdiction to foreclose mechanic's liens even when a bond is filed. Second, oral modifications to written contracts are permissible when the parties have accepted and acted upon the modification in such manner as would work fraud if unenforced, even when the written contract contains a provision prohibiting alteration except in writing.
“A written contract or oral agreement may be altered or modified by an oral agreement if the latter has been accepted and acted upon by the parties in such manner as would work a fraud on either party to refuse to enforce it.”
Establishes the foundational exception to the parol evidence rule allowing oral modifications when the parties have accepted and acted upon them
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Join FLexlaw to unlock all legal intelligenceAppellee filed a lien claim against properties owned by Larnel Builders for amounts due under two written contracts plus extra work and equipment rent…
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Appellee filed a claim of lien against certain properties owned by appellant claiming a sum due on two written contracts entered into by appellant and appellee plus an additional amount for extra work and equipment, •rental. Prior to any action being taken to enforce said lien, appellant filed a bond under the provisions of 84.24 F.S.A. transferring the security of realty to bond. Ap-pellee then proceeded in equity with an action to foreclose said lien. Appellant moved that the action be transferred to the law side of the court which was denied. Then appellant answered and filed a counterclaim. The trial court allowed the full amount of the lien less a set-off based on one of the counts in said counterclaim and entered a final decree for appellee. It is from that final decree that this appeal is taken.
Appellant first contends that the trial court erred in denying its motion to transfer the cause to the law side of the court. This contention is without merit. See Fidelity & Casualty Co. of New York v. D. N. Morrison Construction Company, 99 Fla. 309, 126 So. 151; Granat v. Dulbs, 100 Fla. 1145, 130 So. 464; Milgrim v. Kinser, Fla.App. 1958, 105 So.2d 371.
Appellant next contends that lower court erred in admitting into evidence testimony and exhibits to show a parol contract for the extras and equipment rental claimed in said lien where the said written contracts contained this provision:
“The parties agree that this instrument represents the entire agreement between them and that there are no representations or inducements other than those set forth herein, and that this agreement cannot be altered, modified or amended except by an instrument in writing signed between the parties hereto.”
This contention is also without merit. In Professional Insurance Corporation v. Cahill, Fla.1956, 90 So.2d 916, 917, the Supreme Court of Florida stated:
“The rule is well settled that an ex-ecutory or parol agreement will not be permitted to abrogate or modify a written or sealed instrument, but this rule is not without exceptions. A written contract or oral agreement may be altered or modified by an oral agreement if the latter has been accepted' and acted upon by the parties in such manner as would work a fraud on either party to refuse to enforce it. Moses v. Woodward, 1933, 109 Fla. 348, 140 So. 651, 141 So. 117, 147 So.. 690. This case cited impressive authorities from other jurisdictions and was used as authority for the same-holding in Carter Realty Co. v. Carlisle, 1934, 113 Fla. 143, 151 So. 498, and Tussing v. Smith, 1936, 125 Fla. 578, 171 So. 238. In the recent case of Judson J. Harris d/b/a Harris Refrigeration Co. v. Air Conditioning Corp., Fla.1955, 76 So.2d 877, this Court adhered to the same ruling, citing the above authorities. An oral modification, under these circumstances is permissible even though there was in the written contract a provision prohibiting its alteration except in writing. 17 C.J.S. Contracts § 377 c., p. 867.”
In the case at bar there is no question but that the parties accepted and acted on the oral agreement. The work was done under the supervision of consulting engineers hired by appellant. An officer of appellant was on the property almost daily. Appellant had paid appellee almost $25,000 in excess of the contracts. These facts alone are sufficient to invoke the rule set out in the Cahill case, supra.
Appellant submits that the evidence is insufficient to support the findings *286of the chancellor. We have reviewed the ■record and find that although the testimony is conflicting, there is sufficient evidence to support the findings of the chancellor. These findings will not be disturbed unless there is a total lack of substantial evidence to support the chancellor’s conclusions. Chakford v. Strum, Fla.1956, 87 So.2d 419.
It is accordingly our view that the decree appealed from should be and is hereby affirmed.
Affirmed.
HORTON, C. J., and CARROLL, CHAS., J., concur.
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Doral Country Club, Inc. v. Curcie Bros., Inc., 174 So. 2d 749 (Fla. 3d DCA 1965)…ation for extras or additions should be written. See Vitra-Spray of Florida, Inc. v. Gumenick, Fla.App.1962, 144 So. 2d 533; Broderick v. Overhead Door Co. of Fort Lauderdale, Fla.App.1959, 117 So. 2d 240; Larnel Builders v. Nicholas, Fla.App. 1960, 123 So. 2d 284. The evidence adequately supports the findings of the chancellor. No useful purpose would be served by a detailed review of the evidence presented. During the course of the performance of the contract the parties shifted the basis for billing to th…
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McCARTY v. Dade Div. OF Am. Hosp. Supply, 360 So. 2d 436 (Fla. 3d DCA 1978)…pital Supply to notify appellant of the unsafe condition causing her injuries. See, e. g., Wilson v. McClenny, 32 Fla. 363, 13 So. 873 (1895); H. I. Resorts, Inc. v. Touchton, 337 So. 2d 854 (Fla. 2d DCA 1976); and Larnel Builders, Inc. v. Nicholas, 123 So. 2d 284 (Fla. 3d DCA 1960).…
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Okeechobee Resorts, L.L.C. v. E Z Cash Pawn, Inc., 145 So. 3d 989 (Fla. 4th DCA 2014)…l, Inc. v. Donner Enters., Inc., 464 So. 2d 715 (Fla. 4th DCA 1985); Commerce Nat’l Bank v. Van Denburgh, 252 So. 2d 267 (Fla. 4th DCA 1971); Long Key Corp. v. Willis-Burch, Inc., 133 So. 2d 655 (Fla. 3d DCA 1961); Larnel Builders, Inc. v. Nicholas, 123 So. 2d 284 (Fla. 3d DCA 1960). Other decisions, however, have muddied the waters a bit. Some have casually remarked that an oral modification of a written contract containing a “no oral modification” clause is enforceable anytime a party alleges “conduct whic…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Mauck v. Therrell, 108 Fla. 511 (Fla. 1933)
- The Fid. & Cas. Co. of N.Y. v. D. N. Morrison Constr. Co., Inc., 99 Fla. 309 (Fla. 1930)
- Am. Cont'l Inv., Inc. v. Borofsky, 87 So. 2d 419 (Fla. 1956)
- Dodd Lumber & Timber Co., Inc. v. Krusen Land & Timber Co., 105 Fla. 196 (Fla. 1932)
- Adelaide v. Moses, 109 Fla. 348 (Fla. 1932)
- Seymore v. State, 90 So. 2d 916 (Fla. 1956)
- Prof'l Ins. Corp. v. Cahill, 90 So. 2d 916 (Fla. 1956)
- Tussing v. Smith, 125 Fla. 578 (Fla. 1936)
- Duncan v. Davis, 109 Fla. 347 (Fla. 1933)
- Milgrim v. Kinser, 105 So. 2d 371 (Fla. 3d DCA 1958)