STELLA RYLANDER, APPELLANT,
v.
SEARS ROEBUCK & COMPANY, APPELLEE
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Stella Rylander appeals a judgment in favor of Sears Roebuck & Company for $3,581.90 on an account stated. The court affirmed the trial judge's interpretation of a 1968 bathroom/kitchen installation contract and rejected Rylander's defect and damage claims as untimely.
The trial judge's construction of the contract was correct. Rylander's defect claims were barred by waiver because she failed to complain of Sears' alleged inadequate performance until filing suit nearly four years after the contract date. The trial judge's other holdings involved no abuse of discretion and were correct as a matter of law.
[1] A trial court's construction of a contract should be affirmed unless clearly erroneous, with the parties' intent ascertained from the language used and the objects to be…
[2] A party's failure to complain of a contract's inadequate performance until significantly later may constitute a waiver of the right to seek damages for that performance.
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Join FLexlaw to unlock all legal intelligence“In construing a contract, the intention of the parties is ascertained from the language used in the instrument and the objects to be accomplished and unless clearly erroneous, the construction placed upon a contract by the trial judge should be affirmed.”
Establishes the standard of review for contract interpretation and deference to trial judge's construction.
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Join FLexlaw to unlock all legal intelligenceIn May 1968, Rylander entered into a written contract with Sears for installation of bathroom fixtures, kitchen appliances, and wiring. In March 1972,…
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PER CURIAM.
Defendant-appellant seeks review of a final judgment for $3,581.90 entered in favor of the plaintiff-appellee in this action to recover on an account stated.
In May 1968, defendant-appellant, Stella Rylander, entered into a written contract with the plaintiff-appellee, Sears Roebuck and Company, for the installation of a bathroom with all accessories, kitchen sink, refrigerator, range, lights, living room couch and living room lighting. The contract also provided for the installation of new wiring and light switches.
In March 1972, plaintiff Sears filed the instant action against Ms. Rylander to recover $3,673.85 owed by her on two credit accounts with the company. In response thereto, appellant filed her answer wherein she alleged that (1) plaintiff had not credited her account with all her payments, (2) many of the items supplied by Sears were defective and had broken, (3) that appellee had charged her twice for some items, and (4) plaintiff had refused to repair the defective refrigerator and range. Defendant-appellant also counterclaimed to recover as a setoff damages for holes left by Sears when Sears’ employees attempted to install air-conditioning in defendant’s business premises pursuant to another contract entered into in 1969 and, as a result thereof, defendant had to expend extra money to have the installation completed. The cause proceeded to a non-jury trial at the conclusion of which the trial judge entered final judgment in favor of the plaintiff for the sum of $3,581.90 and awarded the defendant a setoff in the sum of $91.95. Defendant Ms. Rylander appeals therefrom.
Defendant-appellant first argues that the trial judge erred in construing the May 4, 1968 contract between the parties to provide that the term “install new wiring” meant only the new wiring required to install the appliances purchased under the contract rather than all new wiring in the upstairs apartment in addition to the wiring necessary to install the appliances. We cannot agree.
In construing a contract, the intention of the parties is ascertained from the language used in the instrument and the objects to be accomplished and unless clearly erroneous, the construction placed upon a contract by the trial judge should be affirmed. Clark v. Clark, Fla. 1955, 79 So. 2d 426; Hall v. Hall, Fla.App. 1961, 135 So. 2d 432; Trail Burger King, Inc. v. Burger King of Miami, Inc., Fla.App. 1966, 187 So. 2d 55. After a close examination of the subject contract, we conclude that the trial judge’s construction thereof was correct. Further, the appellant having failed to complain of plaintiff’s inadequate performance of the May 1968 contract until the filing of the instant action almost four years later, we conclude that defendant-appellant’s conduct constituted a waiver of her right of action for damages as alleged in her counterclaim. See 7 Fla.Jur. Contracts §§ 140, 141, 142 (1956).
We also considered appellant’s remaining points on appeal and have determined that the trial judge’s holdings on these points resulted in no abuse of discretion, as contended by the appellant, and further were correct as a matter of law.
Accordingly, the judgment herein appealed is affirmed.
Affirmed.
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Gossett & Gossett, P.A. v. Mervolion, 941 So. 2d 1207 (Fla. 4th DCA 2006)…on of the parties is ascertained from the language used in the instrument and the object to be accomplished and unless clearly erroneous, the construction placed upon a contract by the trial judge should be affirmed. Rylander v. Sears Roebuck & Co., 302 So. 2d 478, 479 (Fla. 3d DCA 1974). In this case, the language of the contract is clear that by appellant’s filing of a supplemental petition to enforce its charging lien, it met the requirement of “necessary to institute suit for the collection of fees and a…
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In re Standard Jury Instructions-Contract & Bus. Cases, 116 So. 3d 284 (Fla. 2013)…arties. Fivecoat v. Publix Super Markets, Inc., 928 So. 2d 402, 403 (Fla. 1st DCA 2006). The agreement of the parties “is ascertained from the language used in the instrument and the objects to be accomplished .... ” Rylander v. Sears Roebuck & Co., 302 So. 2d 478, 479 (Fla. 3d DCA 1974); Jones v. Treasure, 984 So. 2d 634, 638 (Fla. 4th DCA 2008). When determining the agreement of the parties, a court need not consider whether or not the parties reached a subjective meeting of the minds as to the terms of a c…
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Bornstein v. Somerson, 341 So. 2d 1043 (Fla. 2d DCA 1977)…1927); Blackhawk Heating & Plumbing Co., Inc., supra. On appeal, unless clearly erroneous, the construction placed upon a contract by the trial judge should be affirmed. Clark v. Clark, 79 So. 2d 426 (Fla.1955); Rylander v. Sears, Roebuck & Company, 302 So. 2d 478 (Fla.App.3d DCA 1974). After close examination of the subject agreement, we conclude that the trial judge’s construction of this citrus “Purchase Agreement and Contract” was correct. While parts of the contract were more nearly akin to a “handling”…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Alyce Clark v. Clark, 79 So. 2d 426 (Fla. 1955)
- Hall v. Hall, 135 So. 2d 432 (Fla. 3d DCA 1961)
- Trail Burger King, Inc. v. Burger King OF Miami, Inc., 187 So. 2d 55 (Fla. 3d DCA 1966)