FREDERICK S. ROTHMAN, APPELLANT,
v.
GOLD MASTER CORPORATION, APPELLEE
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Rothman appeals the dismissal of his employment contract action against Gold Master Corporation. The trial court dismissed on statute of frauds and pleading deficiency grounds, but the appellate court reversed, finding the complaint adequately alleged an oral employment contract with implied annual renewals that falls outside the statute of frauds.
The court reversed the dismissal, holding that the complaint adequately states a cause of action and that an oral renewal for one year of a one-year oral employment contract where performance commenced on the day renewal was entered into is not within the statute of frauds.
[1] For the purpose of passing on a motion to dismiss, all material allegations in the complaint and all reasonable inferences therefrom are taken as true.
[2] When parties to an agreement continue to perform as before after the agreement expires by its terms, an implication arises that they have mutually assented to a new contr…
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Join FLexlaw to unlock all legal intelligence“for the purpose of passing on a motion to dismiss, all material allegations are taken as true as well as all reasonable inferences therefrom”
Establishes the standard for reviewing motions to dismiss - accepting all allegations as true
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Join FLexlaw to unlock all legal intelligenceRothman alleged he entered into an oral employment contract with Gold Master Corporation in New York commencing July 1, 1965 for one year at $15,600 a…
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PER CURIAM.
Plaintiff-appellant appeals from an order granting defendant’s motion to dismiss appellant’s third amended complaint with prejudice. The motion to dismiss was based on the grounds that (1) the action was barred by the statute of frauds [Fla. Stat. § 725.01, F.S.A.], and (2) the complaint fails to state a cause of action because the terms of the alleged contract as set forth in the complaint are incomplete, indefinite and uncertain.
In essence, the third amended complaint alleged the following: that the plaintiff, Frederick Rothman, entered into an oral contract of employment with the defendant, Gold Master Corporation, in New York; that the term of employment commenced on July 1, 1965 and terminated on June 30, 1966; that the oral contract was renewable each year by virtue of the mutual acts and performances of the parties; that the parties annually renewed the contract; that on July 1, 1971 the contract was renewed with the understanding that plaintiff would relocate himself and his family in Florida and loan money to the defendant corporation; that plaintiff complied with these conditions; and that in November 1971, 31 weeks before the end of the term of the contract, defendant without cause dismissed plaintiff; that at the time of dismissal plaintiff’s salary was $15,600, payable $300 per week. The complaint demanded judgment in the sum of $9,300.
We are of the opinion that the complaint has merit to warrant the reversal of the dismissal by the trial judge for the following reasons:
First, it is basic that for the purpose of passing on a motion to dismiss, all material allegations are taken as true as well as all reasonable inferences therefrom. See 25 Fla.Jur. Pleadings § 127 (1959) and cases cited therein.
Second, where as in the case sub judice an agreement expires by its terms and without more the parties continue to perform as before, an implication arises that they have mutually assented to a new contract containing the same provisions as the old; and ordinarily the existence of such a contract is determined by the objective test, that is, whether a reasonable man would think the parties intended to make such a new binding agreement. See 17 Am.Jur.2d Contracts § 520 (1964). We note that this principle is particularly applicable to the master/servant relationship. Third, it is well settled law that if a pleading informs the defendant of the nature of the cause against him, this shall be sufficient. Weich v. Cook, Fla.App. 1971, 250 So. 2d 281. We find that the instant complaint adequately informs the defendant of the nature of the charge against him. Thus, it is sufficient.
Lastly, the oral renewal for one year of a one year oral contract of employment, performance of which was to and did commence on the day renewal was entered into, as in the case at bar, is not within the statute of frauds. Grossman v. Levy’s, Fla.1955, 81 So. 2d 752.
For the reasons cited hereinabove, the order dismissing the third amended complaint is reversed and the cause remanded for further proceedings not inconsistent herewith.
Reversed and remanded.
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Howard A. Rubenstein, M.D. v. Primedica Healthcare, Inc., 755 So. 2d 746 (Fla. 4th DCA 2000)…ontracts, not to agreements that have been fully performed. Full performance takes the agreement beyond the operation of section 725.01. See Moneyhun v. Vital Indus., Inc., 611 So. 2d 1316, 1319 (Fla. 1st DCA 1993). In Rothman v. Gold Master Corp., 287 So. 2d 735 (Fla. 3d DCA 1974), appellant appealed from an order granting defendant’s motion to dismiss his complaint with prejudice. In his complaint, appellant alleged that he entered into an oral contract of employment with the defendant to commence on July…
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Terence B. Crawford v. David Shapiro & Co., P.A., 490 So. 2d 993 (Fla. 3d DCA 1986)…s words and actions, effectively accepted either the original offer or the subsequent offer prior to revocation and, further, that the terms of the first offer were incorporated to a sufficient extent in the second, cf. Rothman v. Gold Master Corp., 287 So. 2d 735 (Fla. 3d DCA 1974) (where agreement expires by its terms and parties continue to perform as before implication arises that the parties mutually assented to a new contract containing the same provisions as the old), so that, if the jury finds that Cr…
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Reverend Donagene Mecier v. Broadfoot, 584 So. 2d 159 (Fla. 1st DCA 1991)…parties, as fair and reasonable men, presumably would have agreed upon, if having in mind the possibility of the situation which has arisen, they had contracted expressly in reference thereto.’ 12 AmJur. 766. See also, Rothman v. Gold Master Corp., 287 So. 2d 735 (Fla. 3d DCA 1974) (where agreement expires by its terms and without more parties continue to perform as before, implication arises that the parties have mutually assented to new contract containing same provisions as old, and existence of such cont…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Grossman v. Levy's, 81 So. 2d 752 (Fla. 1955)
- Weich v. Cook, 250 So. 2d 281 (Fla. 1st DCA 1971)