WILLIAM KATZ AND JOSEPH KATZ, DOING BUSINESS AS ORANGE GROVE KENNELS, APPELLANTS,
v.
ROBERT MENDHEIM, APPELLEE
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Appellants leased racing Greyhounds from appellee under an oral agreement to pay 35% of purse winnings. When the lessor reclaimed the dogs without permission, lessees sought specific performance. The trial court denied relief, characterizing the agreement as an unenforceable joint venture. The appellate court affirmed but on different grounds: the oral lease violated the statute of frauds because it was not performable within one year.
The oral lease is unenforceable because it violates the statute of frauds—as a contract not performable within one year, it must be in writing. The court affirmed the trial court's judgment denying specific performance, though it rejected the trial court's characterization of the agreement as a joint venture lacking the essential elements of shared losses and owner control.
[1] An agreement for the lease of racing greyhounds for the racing life of the dogs, which is established by custom to be in excess of two years, is a contract not to be perf…
[2] A lease agreement is not a joint venture when the lessor does not agree to share in losses and retains no control over the operation.
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Join FLexlaw to unlock all legal intelligence“the agreement between the parties was not a lease but was a joint venture, and as such was not enforceable to compel continuance thereof by one desiring to discontinue”
The trial court's reasoning, which the appellate court rejected
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Join FLexlaw to unlock all legal intelligenceAppellants leased racing Greyhounds from appellee under an oral lease agreement. The lease granted appellants the right to maintain, train, and race t…
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These two appeals, one treating the judgment as final and the other treating it as interlocutory, were filed by the plaintiffs below. By an oral lease, the appellants leased a number of racing Greyhounds from the appellee, the owner of the dogs. The record reveals that under the terms of the lease the lessees were granted the right to maintain, train and race the Greyhounds for the period of their racing life (shown in the record by experience and custom in the trade to be a period of two to three years). The consideration or “rental” agreed to be paid by the lessees to the lessor-owner was thirty-five percentum of' the gross purse money received or “won” by the lessees from the racing of the leased dogs. The expenses of caring for the dogs and racing them were to be borne by the lessees; and there was no ágreement between the parties for the lessor-owner to share to any extent in an operational loss if the lessees should sustain such.
. -The lessor reclaimed possession of the dogs without permission or knowledge of the lessees. Thereafter the lessees filed Suit against the lessor seeking specific performance of the lease to compel the lessor to return the dogs to the lessees, and to enjoin the lessor from racing the dogs. On final hearing judgment was entered denying the relief sought by the plaintiffs. Therein the trial court expressed the conclusion that the agreement between the parties was not a lease but was a joint venture, and as such was not enforceable to compel continuance thereof by one desiring to discontinue.
We are unable to agree with the conclusion reached by the learned trial judge that the transaction represented a joint venture and was not a lease. Two essentials of a joint venture were absent. There was no agreement by the owner to share losses, and he held no measure of control over the handling and racing of the dogs. See Kislak v. Kreedian, Fla. 1957, 95 So.2d 510.
'[2, 3] However, we affirm for a different reason, upon concluding that the oral lease was not enforceable because it *562was within the statute of frauds.1 See § 725.01 Fla.Stat., F.S.A. The lease, which was not in writing, was not a contract to be performed within a year. This was made to appear from the record wherein it was shown that the known and established period of the racing life of Greyhounds is in excess of two years. Therefore, where an owner leases racing Greyhounds to another person for the racing life of the dogs, it necessarily is the understanding and intent of the parties that the lease thereof is for such period of time. Yates v. Ball, 132 Fla. 132, 181 So. 341, 344; Rattan & Bamboo Shop, Inc. v. Rutter, Fla.App.1962, 147 So.2d 11.
Affirmed.
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Food Fair Stores, Inc. v. Vanguard Invs. Co. Ltd., 298 So. 2d 515 (Fla. 3d DCA 1974)…ment will be barred if it is not to be performed within one year from the time it is made. See Tanenbaum v. Biscayne Osteopathic Hospital, Inc., Fla.1966, 190 So. 2d 777; Rowland v. Ewell, Fla.App.1965, 174 So. 2d 78; Katz v. Mendheim, Fla.App.1971, 244 So. 2d 560. We note in passing that the part performance doctrine has been held not to apply to contracts for services. See Battle v. Butler, 138 Fla. 392, 189 So. 846 (1939); Annot., 6 A.L.R.2d 1053, 1074. Having reached the conclusion that the final judgme…
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Hampton Utils. Co., Inc. v. Hampton Homeowners Ass'n, Inc., 252 So. 2d 286 (Fla. 4th DCA 1971)…MAGER, Judge (concurring): Our decision here, affirming the decision of the trial court but rejecting the reasoning upon which such decision is based, is consistent with the following proposition set forth in Katz v. Mendheim, Fla.App. 1971, 244 So. 2d 560, 562, footnote 1: “When in the opinion of an appellate court a ground exists for upholding a judgment which is challenged on appeal the judgment will be affirmed although the reason relied on by the trial court is rejected. Chase v. Cowart, Fla.195…
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In re Est. of Minnie Merz, 273 So. 2d 795 (Fla. 2d DCA 1973)…e to appear. Accordingly, the judgment appealed from should be, and it is hereby, affirmed. Affirmed. MANN, C. J., and LILES and Mc-NULTY, JJ., concur. . See, e. g., In Re Yohn’s Estate (Fla.1970), 238 So. 2d 290; Katz v. Mendheim (Fla.App.1971), 244 So. 2d 560; and Braren v. Lawyers’ Realty Abstract Co. of Sarasota (Fla.App.1967), 196 So. 2d 244. . See, Hartnett v. Fowler (Fla.1957), 94 So. 2d 724.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Yates v. Ball, 132 Fla. 132 (Fla. 1937)
- Kislak v. Koren Kreedian, 95 So. 2d 510 (Fla. 1957)
- Chase v. Faris Cowart, 102 So. 2d 147 (Fla. 1958)
- Tri-County Produce Distribs., Inc. v. Ne. Prod. Credit Ass'n, 160 So. 2d 46 (Fla. 1st DCA 1963)
- Rattan & Bamboo Shop, Inc. v. Rutter, 147 So. 2d 11 (Fla. 3d DCA 1962)