NETTIE DAVIS AS EXECUTOR OF THE ESTATE OF ARTHUR N. DAVIS, DECEASED, ET AL., APPELLANTS,
v.
JOSEPH D. FERRARO, APPELLEE
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The Davis estate sought review of a judgment awarding a former employee 10% interest in a tire business based on an oral agreement with the deceased owner. The court reversed, holding that the statute of frauds barred enforcement of the oral contract because the interest was not to be received for more than two years.
The oral agreement was barred by the statute of frauds under Florida Statute § 725.01 because the interest was not to be received until more than two years after the agreement, and no written memorandum existed to satisfy the statute.
[1] An agreement to convey an interest in a business, where the interest is not to be received until more than two years after the making of the agreement, is barred by the s…
[2] Repeated verbal publication by a decedent of the fact that another person was a part owner of a business does not remove the agreement from the statute of frauds.
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Join FLexlaw to unlock all legal intelligence“Clearly, the plaintiff was not to receive his interest until subsequent to two years after his arrival in Florida, which brought the matter within the prohibition of § 725.-01, Fla.Stat. There being no written memorandum of the agreement, plaintiff was not entitled to recover.”
The court's central holding that the statute of frauds bars recovery because the interest was not performable within two years and lacked written memorialization.
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Join FLexlaw to unlock all legal intelligenceArthur N. Davis hired Joseph Ferraro around 1955-1956 to help run his tire and recapping business in Florida, promising him 10% ownership after paying…
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BARKDULL, Chief Judge.
The appellants, defendants in the trial court, seek review of a final judgment in favor of the plaintiff in an action for the recovery of ten (10%) per cent interest in the business of the defendants.
In 1955 or 1956 the deceased, Arthur N. Davis, asked the plaintiff to come to Florida and help him run his tire and recapping business.
The testimony of the plaintiff and others indicated that the deceased promised the plaintiff ten (10%) per cent of the business after he paid off the loan he had taken to start the business or when he died. It was conceded that he would take at least two years to pay off the loan. The plaintiff did move to Florida and was employed by the deceased. During the time of the plaintiff’s employment he received a weekly salary plus ten (10%) per cent of the profits. Several times during the employment the plaintiff asked the deceased to reduce their agreement to writing. Each time the deceased would insist that he would do it later or that it was not necessary, as they had a gentlemen’s agreement and not to worry about it. Business associates, customers, and competitors testified that it was their understanding that the plaintiff owned part of the business, as that is what they were lead to believe by the deceased. The plaintiff continued to work at and run the business after Mr. Davis died, but when he sought his interest from the estate Mrs. Davis, heir of the deceased, fired the plaintiff. Thereafter, he instituted this action and was eventually successful.
The trial court found: 1) That plaintiff was employed by Mr. Davis from approximately 1956 until July 25, 1972; 2) That Mr. Davis conducted the business with the plaintiff jointly on an arrangement whereby the plaintiff was given inter vivos a ten (10%) per cent of the tire business operated by the decedent; and 3) That the statute of frauds is not applicable in this case because of the repeated verbal publication by the decedent of the fact that the plaintiff was a part owner of the business.
Among other things, the appellants contend that the trial court erred in failing to hold that the statute of frauds barred the relief sought by the plaintiff. We find this point to be well taken and, therefore, do not discuss the other points urged by the appellants for reversal.
Clearly, the plaintiff was not to receive his interest until subsequent to two years after his arrival in Florida, which brought the matter within the prohibition of § 725.-01, Fla.Stat. There being no written memorandum of the agreement, plaintiff was not entitled to recover. See: Rattan and Bamboo Shop, Inc., v. Rutter, Fla.App. 1962, 147 So. 2d 11; Rowland v. Ewell, Fla.App.1965, 174 So. 2d 78; Tanenbaum v. Biscayne Osteopathic Hospital, Inc., Fla. 1966, 190 So. 2d 777; Manas v. Southern Diversified Industries, Inc., Fla.App. 1967, 193 So. 2d 480; Niagara of Florida, Inc. v. Niagara Therapy Manufacturing Corporation, Fla.App.1970, 231 So. 2d 277; Keller v. Penovich, Fla.App.1972, 262 So. 2d 243; Lewin v. U. S. Industries, Inc., Fla.App. 1973, 272 So. 2d 183.
Therefore, the final judgment under review be and the same is hereby reversed, with directions to dismiss the plaintiff’s complaint and cause of action.
Reversed and remanded, with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Weinsier v. Soffer, 358 So. 2d 61 (Fla. 3d DCA 1978)…tely has been held to be within the purview of the rule set forth by the Supreme Court in Yates v. Ball, 132 Fla. 132, 181 So. 341 (1937). See Tobin v. Tobin Insurance Agency, Inc. v. Zeskind, 315 So. 2d 518 (Fla. 3d DCA 1975); and Davis v. Ferraro, 303 So. 2d 407 (Fla. 3d DCA 1974). Cf. First Realty Investment Corporation v. Gallaher, 345 So. 2d 1088 (Fla. 3d DCA 1977). The plaintiff relies upon a claimed exception to this rule, citing Florida Tomato Packers, Inc. v. Wilson, 296 So. 2d 536 (Fla. 3d DCA 1974…
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LaRUE v. Kalex Constr. & Dev., Inc., 97 So. 3d 251 (Fla. 3d DCA 2012)…(Fla. 3d DCA 1976) (noting that where Dworkin admitted in his deposition that he entered into an oral agreement for a period in excess of one year, his claim under an oral employment agreement was barred by the statute of frauds); Davis v. Ferraro, 303 So. 2d 407, 408 (Fla. 3d DCA 1974) (concluding that because the alleged oral employment agreement provided that Ferraro was not to receive the promised interest in the employer’s business until after two years after his arrival in Florida, his action was barre…
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Conger Life Ins. Co. v. Deimel, 441 So. 2d 1116 (Fla. 3d DCA 1983)…, and thus came within the statute of frauds). The consequence of such a finding would still be unfavorable to Deimel since enforcement of the agreement, not in writing, would be precluded by operation of the statute of frauds. See Davis v. Ferraro, 303 So. 2d 407 (Fla. 3d DCA 1974) and cases cited therein.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tanenbaum v. Biscayne Osteopathic Hosp., Inc., 190 So. 2d 777 (Fla. 1966)
- Rowland v. Ewell, 174 So. 2d 78 (Fla. 2d DCA 1965)
- Keller v. Penovich, 262 So. 2d 243 (Fla. 4th DCA 1972)
- Manas v. S. Diversified Indus., Inc., 193 So. 2d 480 (Fla. 3d DCA 1967)
- Niagara OF Fla., Inc. v. Niagara Therapy Mfg. Corp., 231 So. 2d 277 (Fla. 2d DCA 1970)
- Rattan & Bamboo Shop, Inc. v. Rutter, 147 So. 2d 11 (Fla. 3d DCA 1962)
- Lewin v. U. S. Indus., Inc., 272 So. 2d 183 (Fla. 3d DCA 1973)