CECIL WOLFSON, APPELLANT,
v.
THOMAS A. MOYE, APPELLEE
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Wolfson sought specific performance of an alleged contract for the sale of aviation stock. The trial court dismissed the complaint as violating the Statute of Frauds because the contract was not in writing, and the court affirmed this dismissal, holding that oral statements by counsel cannot satisfy the Statute of Frauds requirement.
The court held that the Statute of Frauds requires the essential elements of a contract for the sale of personalty to be set forth in a signed writing by the party to be charged, and that oral statements—even those made by counsel—cannot satisfy this requirement. The proposed amendment did not take the alleged contract out of the operation of the Statute of Frauds.
“The statute should be strictly construed to prevent the fraud it was designed to correct, and so long as it can be made to effectuate this purpose, courts should be reluctant to take cases from its protection.”
Establishes the fundamental principle that the Statute of Frauds must be strictly construed and courts should not easily remove cases from its protection
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Join FLexlaw to unlock all legal intelligenceWolfson sued Moye to compel performance of an alleged contract for the sale of aviation stock. The trial court initially dismissed the complaint, find…
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This is the second appearance here of this cause. The appellant, Wolfson, sued the appellee, Moye, to compel performance of an alleged contract for the sale of aviation stock. The trial court found that: “ * * * the contract on which plaintiff relies to be specifically performed for the sale of said aviation stock comes within the Statute of Frauds, and therefore in violation of Florida Statutes 725.02.” and dismissed appellant’s amended complaint. Wolfson filed an interlocutory appeal from the order of dismissal. That order was affirmed by this court without opinion in accordance with our policy of writing opinions upon the affirmance of interlocutory orders only in cases of special interest to the bar.
After this court’s mandate was filed in the trial court, Wolfson filed a “Motion for Amendment of Complaint” wherein he sought to amend his complaint by adding an allegation that Moye’s counsel told Wolf-son’s counsel that the written draft of the contract for sale of the stock was acceptable to Moye in all respects and that Moye would sign the contract, but not before June 30, 1966. The trial court denied the motion for amendment and dismissed the case.
Denial of a request to amend an amended complaint is not error when the compaint will not state a cause of action even if it includes the proffered amendment. See Matson v. Tip Top Grocery Co., 151 Fla. 247, 9 So.2d 366 (1942). The trial judge was correct in his determination that the proposed amendment did not add any allegation sufficient to take the contract out of the operation of the Statute of Frauds. See Moritt v. Fine, 242 F.2d 128 (5th Cir. 1957).
Appellant urges that the Statute of Frauds1 does not require the accept-*631anee of a contract to be in writing and that the statement of Moye’s counsel to Wolf-son’s counsel constituted an oral acceptance which satisfied the spirit of the statute if not its letter. We cannot agree. The purpose of the statute is to prevent perjuries, to that end the essential elements of contracts to which the statute is applicable must be listed in a note or memorandum signed by the party to be charged. Wolf-son seeks to establish the essential elements by oral testimony that the person to be charged gave an oral statement to his lawyer and that the lawyer gave an oral statement to another lawyer. In Yates v. Ball, 132 Fla. 132, 181 So. 341, 344 (1937), the Supreme Court of Florida pointed out:
“The statute should be strictly construed to prevent the fraud it was designed to correct, and so long as it can be made to effectuate this purpose, courts should be reluctant to take cases from its protection.”
The trial judge correctly determined that the proposed amendment was insufficient to take the alleged contract out of the operation of the Statute of Frauds. The question whether the complaint was sufficient without the amendment was determined adversely to the appellant upon the interlocutory appeal. See Palm Beach Estates v. Croker, 106 Fla. 617, 143 So. 792 (1932).
The trial court found that the alleged contract did not meet the requirements of § 725.02, Fla.Stat. (1965), F.S.A., and was therefore unenforceable. This finding not only precludes the remedy of specific performance, but it precludes the granting of damages for the alleged breach as well. Riviera Printing Company v. Hessler’s Inc., Fla.App.1959, 109 So.2d 778.
Affirmed.
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Lewis v. Purie Howanitz, 378 So. 2d 310 (Fla. 3d DCA 1979)…r rehearing and to amend may be sustained only if the tendered amended complaint showed on its face that the action could not be maintained under Chapter 65-1910. See Matson v. Tip Top Grocery Co., 151 Fla. 247, 9 So. 2d 366 (1942); Wolfson v. Moye, 214 So. 2d 629 (Fla. 3d DCA 1968). We find that the direct contrary is true and therefore reverse the judgment below. Chapter 65-1910 provides: Section 1. That Section 10 of Chapter 61-2503, Laws of Florida, Acts of the Legislature Year 1961 be, and the same is…
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Fin. Venture Consultants, Inc. v. N. Shore Realty Corp., 218 So. 2d 506 (Fla. 3d DCA 1969)…performance. As a result thereof, the trial court entered the final judgment of dismissal appealed herein. We affirm. The written memoranda were not sufficient in detail to justify a specific performance decree. See: Wolfson v. Moye, Fla.App.1968, 214 So. 2d 629. The appellant also urges that the trial court erred in refusing its motion to amend. We fail to find any ruling by the trial court on this point; therefore it is not preserved for review. Jones v. Neibergall, Fla.1951, 53 So. 2d 918; Beaty v. Beaty…
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Hidalgo v. Dorsy, 397 So. 2d 936 (Fla. 3d DCA 1981)…by appellant. Since it appears that appellant could not reframe the complaint to state a cause of action,3 the court correctly denied his Motion for Leave to Amend. Matson v. Tip Top Grocery Co., 151 Fla. 247, 9 So. 2d 366 (1942); Wolfson v. Moye, 214 So. 2d 629 (Fla.3d DCA 1968). Affirmed. . The other purchaser, Anthony Balzebre, is not a party to this suit. . The $10,000 amount seems to be based on half the $20,000 profit-taking option provided for in the contract. . The complaint at issue is an amend…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Yates v. Ball, 132 Fla. 132 (Fla. 1937)
- Matson v. TIP TOP Grocery Co., Inc., 151 Fla. 247 (Fla. 1942)
- Palm Beach Ests. v. Bula E. Croker, 106 Fla. 617 (Fla. 1932)
- In re Application of Marion E. Sibley to Resign from the Bar of the State of Fla., 151 Fla. 225 (Fla. 1942)
- Riviera Printing Co. v. Hessler's, Inc., 109 So. 2d 778 (Fla. 3d DCA 1959)
- Moritt v. Fine, 242 F.2d 128 (5th Cir. 1957)