BERNARD R. WAGNER, APPELLANT,
v.
CAESAR BONUCELLI, APPELLEE
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Wagner (payee) sued Bonucelli (maker) on a demand note more than three years after execution, obtaining summary judgment. The Fourth District Court of Appeal reversed, holding that genuine issues of material fact regarding lack of consideration, release, waiver, and estoppel precluded summary judgment as a matter of law.
The court reversed summary judgment, holding that between the original maker and original payee, extrinsic evidence is admissible to support defenses of lack of consideration, release, waiver, and estoppel, and genuine disputes of material fact existed precluding summary judgment as a matter of law.
[1] Genuine issues of material fact preclude the entry of summary judgment when a defendant raises affirmative defenses that are disputed.
[2] Extrinsic evidence is admissible to show a subsequent oral agreement for the discharge of a prior, simple, written contract, particularly when the oral agreement has been…
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Join FLexlaw to unlock all legal intelligence“Simply it is our opinion that, as between the original maker and original payee there can be evidence produced outside the four corners of the instrument which should be considered in support of the defenses of lack of consideration, release, waiver and estoppel.”
Establishes the core holding that extrinsic evidence is admissible between original parties to a note regarding defenses to enforcement.
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Join FLexlaw to unlock all legal intelligenceBonucelli borrowed money from his foster father (the plaintiff Wagner) for a failed business venture. The parties agreed to forgive the debt. Years la…
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This was a suit upon a demand note by the payee against the maker brought more than three years following its execution. Summary final judgment was entered in favor of plaintiff. Defendant appeals. We reverse because there are genuine issues as to material facts which preclude entry of judgment as a matter of law. F.R.C.P. 1.510(c), 31 F.S.A.; Holl v. Talcott, Fla.1966, 191 So.2d 40.
The complaint was barebones and adequate in setting forth the execution, delivery, demand and non-payment of the note. The answer denied all allegations. It also contained an affirmative defense. While perhaps not classic in form, it reflected that the payee was the maker’s foster father and that the' note' was executed without consideration. It further denied demand and claimed waiver, release and estoppel.
At summary judgment hearing, the plaintiff’s affidavit exactly tracked the com-, plaint. The defendant’s affidavit reflected that the note was to be repaid only if a certain business venture succeeded, which venture failed. Defendant’s deposition in substance stated that he borrowed a sum of money from his mother and foster father for a business venture. The venture failed. Defendant’s mother and foster father agreed to forget and forgive the debt. Much later, the foster father asked defendant to sign the instant note so that the plaintiff could write the non-payment off as a tax loss. Thus, the note was executed. No demand was ever made until the filing of the instant case, this being shortly after the plaintiff’s divorce from defendant’s mother.
The parties raise one point on appeal, namely:
“Whether the court erred in not considering extrinsic evidence as it is admissible to show a subsequent oral agree*620ment for the discharge of a prior, simple, written contract and, if the oral agreement has been executed so as to establish an estoppel?”
We believe that the situation presented is much broader and more basic. Simply it is our opinion that, as between the original maker and original payee there can be evidence produced outside the four corners of the instrument which should be considered in support of the defenses of lack of consideration, release, waiver and estoppel. Mullan v. Bank of Pasco County, 1931, 101 Fla. 1097, 133 So. 323; Gilman v. Butzloff et al., 1945, 155 Fla. 888, 22 So.2d 263; Jackson v. Parker, 1943, 153 Fla. 622, 15 So.2d 451.
We are, of course, required to review all of the facts and inferences in the light most favorable to the appellants where summary judgment has been entered against them. Beebe v. Kaplan, Fla.App.1965, 177 So.2d 869. Also see Holl v. Talcott, supra.
In summary, we hold from the foregoing outline of the factual situation and the pleadings that there were disputes as concerns the existence of defendant’s affirmative defenses sufficent to preclude entry of summary judgment.
Reversed and remanded.
CROSS, C. J., and OWEN, J., concur.
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Coquina Ridge Props. v. E. W. Co., 255 So. 2d 279 (Fla. 4th DCA 1971)…y the defendant was sufficient to establish the want or failure of consideration was a question of fact to be tried and resolved by the trier of fact. J. B. Colt Co. v. Gainey, 1931, 102 Fla. 1065, 136 So. 698; cf. Wagner v. Bonucelli, Fla.App.1970, 239 So. 2d 619. Although we reverse on the basis of the application of the aforementioned principles relating to summary judgment we note in passing that the defendant’s contention regarding the absence of the original promissory note as precluding the entry of s…
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THE Race, Inc. v. Lake & River Recreational Props., Inc., 573 So. 2d 409 (Fla. 1st DCA 1991)…cally held to be inapplicable to oral agreements made subsequent to the execution of a promissory note, as between the parties to the note, in regard to the defense — such as that asserted here — of failure of consideration. See Wagner v. Bonucelli, 239 So. 2d 619, 620 (Fla. 4th DCA 1970). Consequently, if the oral modifications appellant allegedly made were not made before or contemporaneously with the written contract, the parol evidence rule would not preclude the admission of such extrinsic evidence. Add…
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Warren v. Bill RAY Constr. Co., Inc., 269 So. 2d 25 (Fla. 3d DCA 1972)…s in favor of the party against whom a summary judgment is being sought. Delany v. Breeding’s Homestead Drug Co., Fla.1957, 93 So. 2d 116, 119; Groner-Youngerman, Inc. v. Denison, Fla.App.1960, 117 So. 2d 210, 215; Wagner v. Bonucelli, Fla.App.1970, 239 So. 2d 619, 620. A further reason why we must reject this third ground suggested as support for the judgment, is that under the mechanics’ lien law a contractor or subcon [*28] tractor can “perform” his contract by or through another.2 Additionally, in a cas…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Gilman v. Butzloff, 155 Fla. 888 (Fla. 1945)
- Annibelle Jackson and Henry N. Jackson v. Parker, 153 Fla. 622 (Fla. 1943)
- Mullan v. Bank of Pasco Cnty., 101 Fla. 1097 (Fla. 1931)
- Beebe v. Kaplan, 177 So. 2d 869 (Fla. 3d DCA 1965)