MIAMI BEACH FIRST NATIONAL BANK AND GLADYS SCHUTZ, AS EXECUTORS OF THE ESTATE OF NIKOLI MILLER, DECEASED, APPELLANTS,
v.
JOSEPH SHALLECK, APPELLEE
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The court reviewed a final decree ordering an accounting for profits based on an alleged oral agreement for a ten percent interest in patents and machines, which was entered into in New York.
The court affirmed the trial court's decree to account, finding sufficient evidence to support the oral agreement and that it was an executed contract, thus not subject to the statute of frauds under Florida law.
The appellee sued the appellants (executors of a deceased's estate) for an accounting of profits based on an alleged oral agreement for a ten percent …
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The appellants, defendants in the trial court, seek review of a final decree rendered by the chancellor ordering them to account to the appellee [who was the plaintiff in the trial court] for certain profits received by the deceased during his lifetime, pursuant to an alleged oral agreement between the appellee and the deceased, whereby the appellee was entitled to receive ten per cent interest in certain patents, machines and processes of the deceased. The alleged agreement was entered into in the State of New York.
The issue being joined by a general denial and the affirmative defense of the statute of frauds, the chancellor first proceeded to try the question of the right to the accounting. Pursuant to procedures as outlined by the appellate courts of this State [see: Manning v. Clark, Fla.1952, 56 So.2d 521; Cooper v. Fulton, Fla.App. 1959, 107 So.2d 798; Whittle v. Ellis, Fla. App.1960, 122 So.2d 237, 81 A.L.R.2d 1415], he determined the plaintiff was entitled to an accounting and entered a decree to this effect.1 He subsequently took an accounting and rendered a final decree in favor of the plaintiffs, and this appeal ensued. The appellants have preserved two points for review.
First, that the chancellor erred in holding that the appellants were required to account to the plaintiff, because he failed to establish by clear and convincing proof the validity of the oral agreement. We find ample, competent and sufficient evidence to support the decree to account rendered by the chancellor; and, finding such, we are required to sustain him. See: Davis v. Levin, Fla.App.1962, 138 So.2d 351; Rimer v. Mortgage Guarantee Corp., Fla.App.1964, 168 So.2d 549; Seiff v. Presto Brick Machine Corp., Fla.App.1964, 168 So.2d 700.
Second, failing to dismiss the complaint when it was evident that the alleged *651contract in question was of an oral nature and, therefore, unenforceable as not.in compliance with the statute of frauds. The appellee responds to this that the contract was executed and, therefore, not within the statute. The Supreme Court of Florida has long held that the statute applies only to executory and not to executed contracts. See: Summerall v. Thoms, 3 Fla. 298; McDowell v. Ritter, 153 Fla. 50, 13 So.2d 612; Grossman v. Levy's, Fla.1955, 81 So. 2d 752. The record on appeal herein contains substantial, competent evidence to sustain the finding that the alleged oral contract involved in the instant case is, in fact, an executed contract. Thus, under Florida law, it would appear the trial court correctly upheld the oral contract.
However, a review of the record reveals that the alleged oral agreement was entered into on or about January, 1953, in the apartment of the deceased, NIKOLI MILLER, located on E. 57 Street, New York, New York. This being the case, the instant suit comes within the holding of Castorri v. Milbrand, Fla.App.1960, 118 So. 2d 563, and the validity of the alleged oral contract is governed by the laws of New York.
An examination of the New York law applicable at the time of the making of the alleged oral agreement, clearly indicates that same would be valid in the State of New York. See: McKinney’s Consolidated Laws of New York, c. 24-A, Book 23A, General Obligations of Law; and Personal Property Law, 40 McKinney’s Consolidated Laws of New York, c. 41, §§ 1 to 59.
As indicated by the chancellor’s decree to account, he personally heard the testimony in this case; had the opportunity to observe the witnesses and their demeanor and, he having made his decision based upon such evidence and same being sufficient to support the plaintiff’s cause of action, we are not at liberty [from a cold record] to substitute our judgment for that of the trier of the facts who had the benefit of hearing the live testimony. .
Therefore, for the reasons stated above, the final decree here under review is hereby affirmed.
Affirmed.
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W. B. D., Inc. v. Howard Johnson Co., 382 So. 2d 1323 (Fla. 1st DCA 1980)…erformed on the part of the person claiming the benefit thereof. Dionne v. Columbus Mills, 311 So. 2d 681 (Fla. 2d DCA 1975). The statute of frauds applies only to executory and not to executed contracts. Miami Beach First National Bank v. Shalleck, 182 So. 2d 649 (Fla. 3d DCA 1966). When an oral contract has been fully performed by one party, the statute of frauds may not be employed as a defense, even though the subject matter of the contract is the conveyance of an interest in land. In Yates v. Ball, 132 F…
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Collier v. Bolling Brooks, 632 So. 2d 149 (Fla. 1st DCA 1994)…ti-Siravo v. City of Hollywood, 418 So. 2d 1251, 1253 (Fla. 4th DCA 1982); Gerry v. Antonio, 409 So. 2d 1181, 1183 (Fla. 4th DCA 1982); Dionne v. Columbus Mills, Inc., 311 So. 2d 681, 683 (Fla. 2d DCA 1975); Miami Beach First Nat’l Bank v. Shalleck, 182 So. 2d 649, 651 (Fla. 3d DCA 1966).1 See also 2 Arthur L. Corbin, Corbin on Contracts § 457 (1950 & Supp.1993) (adhering to the general rule from numerous jurisdictions that full performance beyond one year renders the statute of frauds inapplicable). Becau…1 / 2
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Gosta Tollius v. Dutch Inns OF Am., Inc., 244 So. 2d 467 (Fla. 3d DCA 1970)
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McDowell v. Halsted L. Ritter, 153 Fla. 50 (Fla. 1943)
- Cooper v. Fulton, 107 So. 2d 798 (Fla. 3d DCA 1959)
- Castorri v. Otto E. Milbrand and Mary Milbrand, 118 So. 2d 563 (Fla. 2d DCA 1960)
- Davis v. Levin, 138 So. 2d 351 (Fla. 3d DCA 1962)
- Rimer v. The Mortg. Guar. Corp., 168 So. 2d 549 (Fla. 3d DCA 1964)
- Grossman v. Levy's, 81 So. 2d 752 (Fla. 1955)
- Seiff v. Presto Brick Mach. Corp., 168 So. 2d 700 (Fla. 3d DCA 1964)
- Whittle v. Ellis, 122 So. 2d 237 (Fla. 2d DCA 1960)
- Summerall v. Daniel Thoms and Wife, 3 Fla. 298 (Fla. 1850)