NIAGARA OF FLORIDA, INC., A FLORIDA CORPORATION, AND EDWARD HARRISON, APPELLANTS,
v.
NIAGARA THERAPY MANUFACTURING CORPORATION, A DELAWARE CORPORATION, AND OWEN K. MURPHY, APPELLEES
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Appellants sued on an alleged oral contract to purchase stock and obtain a lifetime sales franchise. The trial court granted a directed verdict against appellants, finding the contract within the Statute of Frauds because performance was contemplated to take approximately three years. The appellate court affirmed, holding that the contract could not be performed within one year.
The oral contract is within the Statute of Frauds and unenforceable. The Statute applies because the contract could not have been completed within one year—Harrison testified that performance would take approximately three years to pay the $25,000, and the lifetime franchise would only commence after full payment. The lifetime nature of the contract does not exempt it from the Statute because the contract could not be completed upon Harrison's death within one year.
[1] An oral contract is within the Statute of Frauds if its performance is not capable of completion within one year, even if death could terminate the contract sooner.
[2] A contract is not considered capable of completion within one year for Statute of Frauds purposes if the commencement of performance is contingent upon the completion of…
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Join FLexlaw to unlock all legal intelligence“the oral contract will come into effect, wherein I receive the franchise, from the time I complete paying for the stock.”
Harrison's testimony establishing that the lifetime franchise contingent upon three-year stock payment period, demonstrating performance could not occur within one year
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Join FLexlaw to unlock all legal intelligenceEdward Harrison allegedly entered into an oral agreement to purchase stock of Niagara Sales Corporation for $25,000, with the understanding that upon …
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The trial Court was correct in rendering its final judgment against the appellants-plaintiffs upon motion for directed verdict at the conclusion of appellants’ case, and concluding that the oral contract sued upon was within the Statute of Frauds, F.S. § 725.01, F.S.A.
Appellant Harrison testified that it was the intent of the parties that performance of the contract would extend at least three years. We affirm the judgment appealed on authority of Yates v. Ball, 1937, 132 Fla. 132, 181 So. 341; Markowitz Bros., Inc., v. John A. Volpe Const. Co., D.C.S.D. Fla.1962, 209 F.Supp. 339; Dove Sheet Metal, Inc. v. Hays Heating & Plumbing Co., D.C.N.D.Fla.1966, 249 F.Supp. 366; Rattan & Bamboo Shop, Inc. v. Rutter, Fla.App.1962, 147 So.2d 11; Manas v. Southern Diversified Industries, Inc., Fla.App.1967, 193 So.2d 480; Tanenbaum v. Biscayne Osteopathic Hospital, Inc., Fla.App.1965, 173 So.2d 492; Fla.1966, 190 So.2d 777.
Appellants contend that the Statute of Frauds is not applicable in this case because the contract was for the appellant Harrison’s lifetime, relying on Exchange National Bank of Tampa v. Bryan, 1936, 122 Fla. 479, 165 So. 685; Berger v. Jackson, 1945, 156 Fla. 251, 23 So.2d 265; and Schenkel v. Atlantic National Bank of Jacksonville, Fla.App.1962, 141 So.2d 327. The theory of these decisions is that “since death is uncertain, the contract could have been terminated prior to the expiration of one year.” This principle is not applicable to the case sub judice. The appellant Harrison testified that the parties contemplated that it would take about three years to pay the $25,000.00 for the purchase of the stock of the Niagara Sales Corporation, “at which time or the end of time we had finished paying, according to that agreement, we would have a lifetime contract in the sale of Niagara merchandise in the State of Florida” and “the oral contract will come into effect, wherein I receive the franchise, from the time I complete paying for the stock.” There is no showing in the record that the contract could have been completed upon the death of Harrison prior to the expiration of one year. To the contrary, the lifetime contract was not to *278“come into effect” until he “had finished paying” the $25,000.00 for the stock.
Appellants’ remaining point has been examined and does not present a basis for reversal. The trial Court granted the motion for directed verdict also on the basis that appellants’ claim was partly written and partly oral. The written agreement was marked for identification but was never introduced in evidence, nor was it even alleged in appellants’ complaint. During cross-examination of Harrison, the following colloquy occurred:
“Q. Just so I am sure, the $25,000.00 that you refer to as that having paid for the franchise is the same $25,000.00 that has been set forth in the agreement that you have just identified, is it not?
A. Yes, sir.
‡ ‡ ‡ *
Q. Is there any connection between the written agreement and the oral contract? Doesn’t this go together?
A. One is contingent upon the other, yes, sir.”
The judgment appealed herein is
Affirmed.
HOBSON, C. J., and MANN, J., concur.
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First Realty Inv. Corp. v. Gallaher, 345 So. 2d 1088 (Fla. 3d DCA 1977)…year from its “making.” The trial judge incorrectly reasoned that the contingencies of death, resignation and/or firing could take the agreement out of the statute’s control. See Niagara of Florida, Inc. v. Niagara Therapy Manufacturing Corporation, 231 So. 2d 277 (Fla. 2d DCA 1970); 72 Am.Jur.2d, Statute of Frauds §§ 15, 16 (1974); compare Schenkel v. Atlantic National Bank of Jacksonville, 141 So. 2d 327 (Fla. 1st DCA 1962), a personal service contract “for life” case where the contingency of death did take…
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Smith v. Royal Auto. Grp., Inc., 675 So. 2d 144 (Fla. 5th DCA 1996)…d 327, 330 (Fla. 1st DCA), cert. denied, 148 So. 2d 280 (Fla. 1962); cf. First Realty Inv. Corp. v. Gallaher, 345 So. 2d 1088, 1089 (Fla. 3d DCA 1977), cert. denied, 359 So. 2d 1214 (Fla.1978); Miagara of Florida, Inc. v. Niagara Therapy Mfg. Corp., 231 So. 2d 277, 277 (Fla. 2d DCA), cert. denied, 237 So. 2d 763 (Fla. 1970).…
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Hesston Corp. v. Roche, 599 So. 2d 148 (Fla. 5th DCA 1992)…he parties was for employment to exceed one year, the contract would fall within the statute of frauds. The court refused to speculate about the parties’ intent at the motion to dismiss stage. In Niagara of Fla., Inc. v. Niagara Therapy Mfg. Corp., 231 So. 2d 277 (Fla. 2d DCA), cert. denied, 237 So. 2d 763 (Fla.1970), the court observed the general rule that a contract for a person’s “lifetime” is not within the statute of frauds because “the contract could have been terminated prior to the expiration of one…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Yates v. Ball, 132 Fla. 132 (Fla. 1937)
- Berger v. WM. H. Jackson ad Litem of the Estate of Letitia V. Graham, 156 Fla. 251 (Fla. 1945)
- Tanenbaum v. Biscayne Osteopathic Hosp., Inc., 190 So. 2d 777 (Fla. 1966)
- Exch. Nat'l Bank of Tampa v. Bryan, 122 Fla. 479 (Fla. 1936)
- Schenkel v. The Atl. Nat'l Bank OF Jacksonville, 141 So. 2d 327 (Fla. 1st DCA 1962)
- Elmore v. Holley, 173 So. 2d 492 (Fla. 2d DCA 1965)
- Manas v. S. Diversified Indus., Inc., 193 So. 2d 480 (Fla. 3d DCA 1967)
- Rattan & Bamboo Shop, Inc. v. Rutter, 147 So. 2d 11 (Fla. 3d DCA 1962)