THE MIAMI BEACH FIRST NATIONAL BANK AND FRED R. BAISDEN, AS CO-EXECUTORS OF THE ESTATE OF WILLIAM B. MACDONALD, JR., DECEASED, APPELLANTS,
v.
TROPICAL PARK, INC., A FLORIDA CORPORATION, APPELLEE
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This case involves an appeal concerning whether a general release covered a specific debt. The appellate court affirmed the trial court's decision, finding sufficient evidence to support the conclusion that the debt was not included in the release.
The specific indebtedness was not covered by the general release. The trial court's finding that the debt was not included in the release was supported by substantial, competent evidence.
“It is generally a question of fact wherein parol evidence is accepted, notwithstanding the written agreement to determine if an item which is not mentioned in a release was to be included therein.”
Establishes the legal principle that the scope of a release can be a question of fact, allowing for parol evidence.
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Join FLexlaw to unlock all legal intelligenceThe Miami Beach First National Bank and Fred R. Baisden, as co-executors of an estate, appealed a final judgment against them. The appellee, Tropical …
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Appellants, defendants in the trial court, seek review of an adverse final judgment rendered by the trial court in a non-jury action.
The appellee-plaintiff sued for monies due it from the late William B. MacDonald, Jr. The defense was that the sums, admitted as correct, were not recoverable because of an executed general release. The trial judge found that the particular indebtedness involved was not covered by the general release, upon the authority of Ormsby v. Ginolfi, Fla.App.1958, 107 So.2d 272; Graham v. Taller & Cooper, Inc., E.D.N.Y. 1950, 91 F.Supp. 419; Simon v. Simon, 274 App.Div. 447, 84 N.Y.S.2d 307; 76 C.J.S. Release § 52; Anno. 171 A.L.R. 185.
It is generally a question of fact wherein parol evidence is accepted, notwithstanding the written agreement to determine if an item which is not mentioned in a release was to be included therein. Bruce Construction Corporation v. Federal Realty Corporation, 104 Fla. 93, 139 So. 209; Ormsby v. Ginolfi, supra; Florida State Turnpike Authority v. Industrial Construction Company, Fla.App.1961, 133 So.2d 115; 28 Fla.Jur., Release, §§ 17, 18.
We find substantial, competent evidence in the record to support the trial judge’s finding. Therefore, the same and the final judgment here under review should not be disturbed on appeal. Dade County, By and Through Bd. of County Com’rs. v. Pepper, Fla.App. 1964, 168 So.2d 198; Leeb v. Read, Fla.App.1966, 190 So.2d 830; Gaisford v. Frostman, Fla.App. 1967, 202 So.2d 790; Southeast Foods, Inc. v. Penguin Frozen Foods, Fla.App.1967, 203 So.2d 39.
Affirmed.
(dissenting).
The option agreement and the general release involved herein were executed on December 24, 1965. They specifically released William B. MacDonald, Jr. from any obligations which he had to Tropical Park, Inc. as of that date, except for any obligations imposed upon him by virtue of the option agreement. The obligation, which resulted in the final judgment herein, was not imposed upon him by the option agreement.
I do not think parol evidence should have been admitted to vary the terms of the general release. See 13 Fla.Jur. Evidence § 383.
The general release of December 24, 1965, would not apply to the One Thousand Dollars ($1,000) paid to MacDonald by Tropical on January 1, 1966. In my opinion a judgment for Tropical Park, Inc. against the appellees for One Thousand Dollars ($1,000) should have been entered.
I respectfully dissent.
[*753] SWANN, Judge
(dissenting).
The option agreement and the general release involved herein were executed on December 24, 1965. They specifically released William B. MacDonald, Jr. from any obligations which he had to Tropical Park, Inc. as of that date, except for any obligations imposed upon him by virtue of the option agreement. The obligation, which resulted in the final judgment herein, was not imposed upon him by the option agreement.
I do not think parol evidence should have been admitted to vary the terms of the general release. See 13 Fla.Jur. Evidence § 383.
The general release of December 24, 1965, would not apply to the One Thousand Dollars ($1,000) paid to MacDonald by Tropical on January 1, 1966. In my opinion a judgment for Tropical Park, Inc. against the appellees for One Thousand Dollars ($1,000) should have been entered.
I respectfully dissent.
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Vance D. Bishop and Joseph F. Putnam v. James A. Knowles, Inc., 292 So. 2d 415 (Fla. 2d DCA 1974)…those floors. We believe the testimony was properly admitted to be considered together with all the other evidence bearing on whether Nunamaker breached its subcontract. Cf. Miami Beach First National Bank v. Tropical Park, Inc., Fla.App.3rd, 1968, 215 So. 2d 752. Since there is competent substantial evidence in the record to support the court’s finding with respect to the offset, Nunamaker’s cross-appeal cannot be sustained. Accordingly, the judgment against the Trustees is reversed; the judgment against K…
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Quarterman v. City OF Jacksonville, 347 So. 2d 1036 (Fla. 1st DCA 1977)…istrict Court of Appeal, under different factual circumstances, permitted a plaintiff to introduce parol evidence in an attempt to contradict the express terms of the release. Miami Beach First National Bank v. Tropical Park, Inc., Fla.App.3rd 1968, 215 So. 2d 752. Courts from numerous other jurisdictions have, however, considered the exact point at issue. See Annotation at 13 A.L.R.3d 313 (1967). Although there is a split of authority, the better view in such cases, and the view which we hereby adopt, is th…
Authorities Cited
- Bruce Constr. Corp. v. Fed. Realty Corp., 104 Fla. 93 (Fla. 1932)
- Ormsby v. Ginolfi, 107 So. 2d 272 (Fla. 3d DCA 1958)
- Dade Cnty. v. Pepper, 168 So. 2d 198 (Fla. 3d DCA 1964)
- Leeb v. Read, 190 So. 2d 830 (Fla. 3d DCA 1966)
- City OF Miami v. Aguilera, 133 So. 2d 115 (Fla. 3d DCA 1961)
- Se. Foods, Inc. v. Penguin Frozen Foods, 203 So. 2d 39 (Fla. 3d DCA 1967)
- Gaisford v. Frostman, 202 So. 2d 790 (Fla. 4th DCA 1967)