JULES SOKOLOFF, APPELLANT,
v.
CORINTO STEAMSHIP COMPANY, A LIBERIAN CORPORATION, APPELLEE
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The Florida District Court of Appeal affirmed a summary judgment against a defendant who sought to avoid payment on a promissory note. The court found that written agreements excluded oral warranties and that failure of consideration was not properly raised.
No, the trial court did not err. The written agreements excluded oral warranties, and the issue of failure of consideration was not properly raised.
“the four written agreements involved in the transaction out of which the promissory note arose, indicate that a vessel was sold “as is, where is”, which clearly excluded any oral representation or warranties as to the performance capabilities of the vessel.”
This quote establishes the court's reasoning for rejecting the claim of breach of oral warranties.
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Join FLexlaw to unlock all legal intelligenceThe defendant executed a promissory note related to the purchase of a vessel. The written agreements for the sale of the vessel stated it was sold "as…
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Appellant, defendant in the trial court, seeks review of an adverse summary judgment in an action to collect on a promissory note. He urges as points on appeal a breach of oral warranties and a failure of consideration for the execution of the promissory note. We find no error in the judgment here under review.
The four written agreements involved in the transaction out of which the promissory note arose, indicate that a vessel was sold “as is, where is”, which clearly excluded any oral representation or warranties as to the performance capabilities of the vessel. Yanish v. Fernandez, 156 Colo. 225, 397 P.2d 881; Findley v. Downing Motors, Inc., 79 Ga.App. 682, 54 S.E.2d 716; Holbrook v. Capital Automobile Company, 111 Ga.App. 601, 142 S.E.2d 288. No proper issue was raised as to the failure of consideration; no specific affirmative defense was pleaded and, without such, this matter is not properly raised as a point on appeal. See: Biro v. Geiser, Fla.1967, 199 So.2d 461; Light v. King, Fla.App.1965, 179 So.2d 398; Accord Jones v. Life Insurance Company of Florida, Fla.App.1968, 215 So.2d 889.
Therefore, for the reasons above stated, the final summary judgment here under review be and the same is hereby affirmed.
Affirmed.
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Doyle v. Maruszczak, 834 So. 2d 307 (Fla. 5th DCA 2003)…this argument is that it has never been raised by Doyle (probably because he recognized the credibility problem it presented). The law is clear that such argument has been waived, even in a summary judgment context. See Sokoloff v. Corinto S.S. Co., 225 So. 2d 554 (Fla. 3rd DCA 1969) I find the affidavit of Mary Anne Mar-chant stating that she simply would not sell Lot 11 to the Maruszezaks, even though she did not know them and even though the lot had been listed on the open market for months, inherently in…
Authorities Cited
- Birdsall Constr. Co. & Commercial Union Ins. Co. of N.Y. v. Good Samaritan Hosp. & Fla. Indus. Comm'n, 199 So. 2d 461 (Fla. 1967)
- Jones v. Life Ins. Co. OF Fla., 215 So. 2d 889 (Fla. 3d DCA 1968)
- Light v. King, 179 So. 2d 398 (Fla. 3d DCA 1965)