MARGARET BINZ, APPELLANT,
v.
HELVETIA FLORIDA ENTERPRISES, INC., A FLORIDA CORPORATION, APPELLEE
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Margaret Binz appealed a directed verdict entered in favor of her former employer, Helvetia Florida Enterprises, Inc., after a jury had rendered a verdict in her favor for unpaid salary. The court affirmed the directed verdict, holding that Binz's employment contract lacked consideration because she had no actual duties to perform as assistant secretary.
The court held that Binz's employment contract lacked consideration because the promise to pay salary was predicated on performing certain services, yet no services were actually required or performed. Therefore, any payments made from 1952 to 1956 were gifts, and the corporation had no legal obligation to continue payments after April 1956.
“The by-laws of the corporation specify duties for all officers and prescribes there shall be an assistant secretary. No duties of assistant secretary were prescribed. To hold one's self in readiness to perform no duties does not provide consideration for a contract.”
The trial court's finding that the employment contract lacked consideration because no specific duties were prescribed for the assistant secretary position.
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Join FLexlaw to unlock all legal intelligenceMax Binz, president and director of Helvetia Florida Enterprises, Inc., was the divorced husband of appellant Margaret Binz. In December 1952, Margare…
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Appellant, plaintiff below, seeks review of a final order granting the motion of appellee-defendant to set aside a jury verdict rendered in plaintiff’s favor and the entry of judgment for the defendant, notwithstanding the verdict.
This was an action to recover salary allegedly due appellant from appellee. The facts giving rise to the instant appeal are as follows: Max Binz, the president and director of appellee corporation, a small holding company, was the divorced husband of appellant. He held these offices from the time of the formation of the corporation in December, 1952, until his death in 1955.
In December, 1952, appellant was duly elected assistant secretary of the appellee corporation and her salary was fixed at $75 per week, which was paid to her until April, 1956. In March, 1961, appellant brought suit seeking judgment for salary allegedly due her from April, 1956, to date. Her complaint alleged, inter alia, that she had entered into a contract of employment with appellee to last until someone had been appointed to succeed her; that no person had been so appointed; that she was never advised that she had been discharged; and that she stood ready, willing and able to perform her duties.
At the trial, appellee moved for a directed verdict at the close of appellant’s case and at the close of all the testimony. The trial court reserved ruling on these motions and submitted the cause to the jury which returned a verdict in favor of appellant. Thereupon, the court entered an order which granted appellee’s motion to set aside the verdict and entered judgment in accordance with appellee’s motion for a directed verdict. It is this order from which the appellant has appealed.
Without elaborating upon all of the trial court’s findings which were the bases for the above order, suffice it to say that we are of the view that the trial judge was eminently correct. The order, in part, provided :
“(2) The by-laws of the corporation specify duties for all officers and prescribes there shall be an assistant secretary. No duties of assistant secretary were prescribed. To hold one’s self in readiness to perform no duties does not provide consideration for a contract.”
The appellant’s own testimony reflects the fact that there were no duties for her to perform as assistant secretary and she in fact never so performed. It is axiomatic that where a promise to pay a sum of money is made upon the consideration of a promise to perform certain service, the consideration fails if the services are not performed, and the promise based thereon is discharged. Jones v. McCallum, (1885), 21 Fla. 392. See also 7 Fla. Jur., Contracts, § 39, p. 97. Any money paid to appellant by the corporation from December, 1952, until April, 1956, would appear at best to be a gift, and no legal obligation attached to the corporation to continue such payment.
We have examined and carefully considered other errors urged and find them to be without merit.
Accordingly, the order and judgment appealed is affirmed.
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Anne Narus v. Narus, 382 So. 2d 144 (Fla. 4th DCA 1980)…d total failure of consideration. We agree. Where a prom [*146] ise to pay a sum of money is given in exchange for a promise to perform a service, the consideration fails if the services are not performed. Binz v. Helvetia Florida Enterprises, Inc., 156 So. 2d 703 (Fla. 3d DCA 1963), appeal dismissed 379 U.S. 12, 85 S.Ct. 117, 13 L.Ed.2d 24 (1964). The sole consideration for appellant’s agreement to relinquish part of her legal entitlement to the marital residence was appellees’ promise not to seek legal reco…
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Rose Printing Co. v. Haggerty, 584 So. 2d 606 (Fla. 1st DCA 1991)…There is no conflict as to the fact that Haggerty voluntarily stepped down from the position of plant manager in November, 1988. He thereby breached the contract by abandonment or failed consideration or performance. In Binz v. Helvetia Fla. Enter., 156 So. 2d 703, 704 (Fla. 3d DCA 1963), cert. denied, 162 So. 2d 665 (Fla.), appeal dismissed mem., 379 U.S. 12, 85 S.Ct. 117, 13 L.Ed.2d 24 (1964), reh’g denied mem., 379 U.S. 917, 85 S.Ct. 266, 13 L.Ed.2d 189 (1964), our sister court held: It is axiomatic that…
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Nesbitt v. The Bros. OF The Order OF Hermits OF ST. Augustine, 619 So. 2d 344 (Fla. 3d DCA 1993)…al of a federal court suit O’Malley was maintaining against the Order. Since it is uncontradicted that O’Malley did not dismiss the suit, the Order had no obligation to pay the expenses claimed. See Binz v. [*345] Helvetia Florida Enterprises, Inc., 156 So. 2d 703 (Fla. 3d DCA 1963), cert. denied, 162 So. 2d 665 (Fla.1964); Cohen v. Rothman, 127 So. 2d 143 (Fla. 3d DCA 1961), cert. discharged, 138 So. 2d 328 (Fla.1962). Accordingly the judgment against the Order is reversed with directions to enter judgment i…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. McCallum, 21 Fla. 392 (Fla. 1885)