THE WINGREEN COMPANY, A FLORIDA CORPORATION, APPELLANT,
v.
MONTGOMERY WARD & CO., INC., AN ILLINOIS CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA, APPELLEE
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Wingreen Company sued Montgomery Ward for payment for furnishings supplied to an apartment house. The trial court granted summary judgment for the plaintiff, and the appellate court affirmed, finding that Wingreen established its case for goods bargained and sold even though the parties' written contract was incomplete regarding payment terms.
The summary judgment is affirmed. While recovery on the breach of contract claim is not supportable due to the incomplete written agreement, recovery is supportable under the goods bargained and sold theory, as Montgomery Ward admitted receiving the goods and their reasonable value.
“the defendant did receive goods and products of the plaintiff in the form of furnishings for an apartment house and, in fact, has used same for a period in excess of two years. And, it was conceded that the value of the goods was in accordance with the amount sought by the plaintiff.”
Establishes the factual basis supporting summary judgment—defendant's admissions regarding receipt, use, and fair value of the goods.
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Join FLexlaw to unlock all legal intelligenceMontgomery Ward received furnishings from Wingreen Company for an apartment house and used them for over two years. The parties initially planned to f…
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The appellant, defendant in the trial court, seeks review of an adverse summary final judgment. The plaintiff in the trial court filed a common law action in three counts: Count 1. Action on breach of contract. Count 2. Common law action for goods bargained and sold. Count 3. Action for account stated. To this complaint, an answer of general denial was filed. Subsequent to the taking of depositions of the principals of the defendant corporation, the plaintiff moved for a summary judgment.
It is apparent, under the evidence, that the defendant did receive goods and products of the plaintiff in the form of furnishings for an apartment house and, in fact, has used same for a period in excess of two years. And, it was conceded that the value of the goods was in accordance with the amount sought by the plaintiff. The defendant having admitted the receipt of the goods; having admitted the reasonableness of the value; having admitted the dominion of the goods to the extent that it had placed a lien on them, we find no error in the summary final judgment entered requiring it to pay for the chattels, and affirm.
It is apparent that in the beginning of the negotiations the parties had planned to formalize their agreement by certain written documents. It is also apparent that the documents were never completed as to the terms relative to the mode of payment. It was the contention of the defendant that the items were to be purchased on credit, with the installments maturing over a period of seven years. Recovery is not supportable on the contract account. It is supportable under the account for goods bargained and sold and, the record supporting the judgment in this particular, it will therefore be affirmed. See: State ex rel. Bodner v. Florida Real Estate Commission, Fla. 1956, 99 So.2d 582; Berkman v. Miami National Bank, Fla.App.1962, 143 So.2d 535.
Notwithstanding its answer of general denial, the defendant attempted to raise an affirmative defense by responsive affidavit to the motion for summary judgment. However, it is well established in the *410law of this State that affirmative defenses must be pleaded and it is not sufficient to sustain a defense to a summary judgment motion to allege such in affidavits. See: Fink v. Powsner, Fla.App.1958, 108 So.2d 824; Mark Leach Health Furniture Co. v. Thal, Fla.App. 1962, 143 So.2d 64. The remaining assignment of error urged by the appellant [as to the untimely affidavit, which certainly was not good practice] appears to be merely harmless, as the net effect of said affidavit was to reduce the liability of the defendant. Without the affidavit, the trial judge would have been correct in entering a summary judgment for approximately an additional $1,100.00 against the defendant.
Therefore, for the reasons stated above, the summary final judgment here under review is hereby affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Haskell Liberman and Leatrice Liberman v. Rhyne, 248 So. 2d 242 (Fla. 3d DCA 1971)…defenses in the opposing affidavit. This may not be done as affirmative defenses must be raised in the answer or pleadings of the defendants and may not be raised by an opposing affidavit. See Wingreen Company v. Montgomery Ward & Co., Fla.App.1965, 171 So. 2d 408. The depositions relied upon by the defendant for reversal of the "partial summary final judgment” were taken and filed subsequent to the hearing on March 30, 1970 and under these circumstances may not be considered on the motion for summary judgme…
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Movielab, Inc. v. Davis, 217 So. 2d 890 (Fla. 3d DCA 1969)…n the pleadings. Fink v. Powsner, Fla.App.1958, 108 So. 2d 324; Mark Leach Health Furniture Co. v. Thai, Fla.App.1962, 143 So. 2d 64; Staskiewicz v. Krause, Fla.App.1964, 159 So. 2d 476; Wingreen Company v. Montgomery Ward & Co., Inc., Fla.App.1965, 171 So. 2d 408; Turf Express, Inc. v. Palmer, Fla.App.1968, 209 So. 2d 461. Therefore, we find it not incumbent on the trial judge to consider foreign law in the instant case and affirm his action upon the authority of Leo Jay Rosen Associates, Inc. v. Schultz, Fl…
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Accurate Metal Finishing Corp. v. Carmel, 254 So. 2d 556 (Fla. 3d DCA 1971)…as, no such defense was asserted in the pleadings. Affirmative defenses must be pleaded and it is not sufficient to sustain a defense to a summary judgment motion to allege such in affidavits. Wingreen Company v. Montgomery Ward & Co., Fla.App.1965, 171 So. 2d 408; Turf Express, Inc. v. Palmer, Fla.App.1968, 209 So. 2d 461. We have carefully considered the record, briefs and argument of counsel in the light of the rules governing the granting of the summary judgment and have concluded that no reversible erro…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Berkman v. Miami Nat'l Bank, 143 So. 2d 535 (Fla. 3d DCA 1962)
- Dotson v. Maddox, 143 So. 2d 64 (Fla. 3d DCA 1962)
- State of Fla. ex rel. Charles J. Bodner v. Fla. Real Est. Comm'n, 99 So. 2d 582 (Fla. 1956)