HERBERT BRAUN, D/B/A RELIANCE REALTY AND BUSINESS BROKERS, APPELLANT,
v.
JIM NOEL AND JIM'S NORTHWEST, INC., A FLORIDA CORPORATION, JOINTLY AND SEVERALLY, APPELLEES
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This case concerns whether a real estate broker's complaint sufficiently stated a cause of action for breach of contract based on an account stated. The court held that simply presenting a bill and retaining it without objection does not, by itself, create a liability.
No, the complaint does not sufficiently state a cause of action for breach of contract based on an account stated. The mere retention of a statement without objection does not, in itself, create liability.
“There can be no liability on an .account stated if there has been no mutual agreement, and the mere presentation of a . claim and its retention without obj ection cannot of itself create a liability.”
This quote establishes the core legal principle that an account stated requires mutual agreement and that retention of a bill without objection is insufficient to create liability.
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Join FLexlaw to unlock all legal intelligenceA real estate broker alleged he was employed to find a buyer and was owed a commission of $5,250.00. He claimed he performed his duties, presented a s…
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The appellant’s amended complaint alleged employment as a real estate broker '“to exert his best efforts to procure a pur■chaser” and that the appellees, defendants, .agreed to pay a reasonable sum for his services. The amended complaint also alleged that the appellant “duly performed all ■of the services on his part to be performed, .and made and rendered to Defendants an accurate statement * * * showing the commission earned by plaintiff in the sum of $5,250.00, which statement was received by Defendants and retained by them with.out objection * *
Upon motion by the defendants, the trial judge dismissed the complaint for failure to ■state a cause of action. We affirm.
The appellant contends that the complaint stated a cause of action in contract upon .an account stated.
There can be no liability on an .account stated if there has been no mutual agreement, and the mere presentation of a . claim and its retention without obj ection cannot of itself create a liability. See Alexander v. Ballard, 95 Fla. 950, 117 So. 96 (1928); Everett v. Webb Furniture Co., 98 Fla. 780, 124 So. 278 (1929); Rauzin v. Kupper, Fla.App. 1962, 139 So.2d 432. See also Meagher v. Kavli, 251 Minn. 477, 88 N.W.2d 871 (1958). Cf. Nelson v. Montana Iron Mining Company, 140 Mont. 331, 371 P.2d 874 (1962); 6 Williston, Contracts §§ 1862-1864 (rev. ed. 1938); 6 Corbin Contracts §§ 1290, 1305, 1312, 1313 (1962).
Affirmed.
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McKISSICK v. Bilger, 480 So. 2d 211 (Fla. 1st DCA 1985)…of a person’s failure to object when such person has had no dealing with the sender of the account. Id. Accordingly, the presentation of a claim and its retention without objection are insufficient facts to establish the presumption. Braun v. Noel, 188 So. 2d 564 (Fla. 3d DCA 1966). The evidence presented in the case at bar was legally insufficient to subject appellants to liability on the theories of joint venture and account stated. REVERSED. JO ANOS and BARFIELD, JJ., concur.…
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Dutch Inns OF Am., Inc. v. Jenkins, 301 So. 2d 119 (Fla. 3d DCA 1974)…proposition that there can be no liability on an account stated if there has been no mutual agreement, and from this we infer that the account stated must be based upon prior dealings out of which the account arose. See Braun v. Noel, Fla.App.1966, 188 So. 2d 564. Such an agreement was proved in the instant case. Further, it cannot be concluded from this record that appellee’s action was solely upon the account. Appellant’s second point is based upon the holding that an architect cannot recover if the actua…
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Rec. Corp. OF Am. v. Jack Drury & Assocs., Inc., 235 So. 2d 49 (Fla. 4th DCA 1970)…ills from the plaintiff. There can be no liability on an account stated if there has been no mutual agreement, and the mere presentation of a claim and its retention without objection cannot of itself create a liability. Braun v. Noel, Fla.App.1966, 188 So. 2d 564. The record clearly discloses issues of fact on the plaintiff’s complaint. The trial judge was in error in entering final judgment predicated upon a summary judgment. The judgment is vacated with directions to proceed to trial on the issues of the…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Everett v. Webb Furniture Co., Inc., 98 Fla. 780 (Fla. 1929)
- Moe Rauzin v. Kupper, 139 So. 2d 432 (Fla. 3d DCA 1962)
- Olin M. Alexander v. Ballard, 95 Fla. 950 (Fla. 1928)