Ross v. Florida Sun Life Ins. Co., 1778

• Decision Date: 02 December 1960
• Docket Number: No. 1778,1778
• Parties: Hervey S. ROSS, Appellant, v. FLORIDA SUN LIFE INSURANCE COMPANY, a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 892

124 So.2d 892

Hervey S. ROSS, Appellant, v. FLORIDA SUN LIFE INSURANCE COMPANY, a Florida corporation, Appellee.

No. 1778.

District Court of Appeal of Florida, Second District.

Dec. 2, 1960.

Jose A. Gonzalez, Jr., Watson, Hubert & Sousley, Fort Lauderdale, for appellant.

Ted P. Galatis, Fort Lauderdale, for appellee.

ALLEN, Chief Judge.

The appellant, as plaintiff in the lower court, filed an action for damages arising out of an alleged breach of an option to purchase two thousand shares of stock of appellee-defendant corporation. The defendant answered denying the contract and alleged that the option was conditioned upon the plaintiff selling $500,000 insurance for the defendant and remaining in defendant's employ until a certain date, neitner of which were performed by the plaintiff. The cause was tried before the court without a jury, after which judgment was entered for the defendant.

The plaintiff, Hervey S. Ross, was employed by the defendant, Florida Sun Life Insurance Company, in February, 1955, at which time the company was in the process of organizing. Ross began selling insurance for the defendant sometime during the latter part of Rebruary in 1955. He contends that he had been extended an oral option by the president of the company, Mr. Dean, which gave him the right to purchase 2,000 shares of original stock at $3.00 per share. On May 5, 1955, Ross went to Mr. Dean's office and requested that he be given an option in writing. Ross discussed his request with John D. Steele, who was then serving as attorney for the company and maintained an office in the company's headquarters.

Ross gave Steele a copy of the option that he desired to have signed by the president, Mr. Dean. The plaintiff also gave Steele a check for $100.00 as a down payment on the stock. Upon receiving this request, Steele immediately asked Dean whether or not it was proper to execute the agreement and accept the check. Dean told Steele that it was all right to execute the option and accept the check and Steele then executed the following option and gave it to Ross:

'Received of Hervey S. Ross $100 by check on the Broward National Bank. Said $100 being a deposit on 2000 shares of stock in the Florida Sun Life Insurance Company. Prepared price at $3.00 per share in agreement with Mr. Dean and the board of directors of the Florida Sun Life Insurance Company, made February 15, 1955. Balance to be paid by December 31, 1955 at option of purchaser.

'Dated this May 5, day of 1955.

'James C. Dean, Pres.

'John D. Steele, as Trustee

's/John D. Steele, as Trustee.'

The check was duly deposited and paid to the company.

In September, 1955, Ross went to Dean and advised him that he wished to exercise his option to purchase the stock. Dean refused to honor the option. Ross then made a valid tender of the entire amount necessary to purchase the stock and Dean again refused unless Ross would agree to remain in the company's employment until December 31, 1955, and have sold $500,000 worth of insurance by that time. Ross refused to accept these conditions. On December 23, 1955, the company refunded by check the $100.00 deposit which Ross had made previously. Thereafter the suit was instituted on March 19, 1958.

The appellant contends that the option contains and constitutes the entire agreement between himself and the appellee. The appellee contends that the agreement was always subject to the conditions that (1) appellant remain in the employment of the company until December 31, 1955, which appellant failed to do, and; (2) that plaintiff sell $500,000 worth of life insurance, which appellant did not do. The appellee contends that these conditions were made known to appellant at a meeting of the Board of Directors which appellant attended on March 12, 1955, at which time the original oral agreement was entered into by the parties. The testimony conflicts throughout. The appellant contends and testified that there was no mention of the terms and conditions of the option at this Board meeting. As to the alleged conditions, it was stipulated that the appellant did not sell $500,000 worth of insurance and that he terminated his affiliation with the appellee company on June 15, 1955.

Steele testified that he obtained Dean's consent before signing the agreement with the appellant. Dean testified that he told Steele to give appellant a receipt for the deposit but that he, Dean, did not understand that the attorney was executing anything more than a receipt. Steele's signature as trustee was explained by stating that he was acting as trustee for the sale of the stock and was depositing the proceeds of the stock sales in a special trust account.

In the final order the court found:

'1. That the alleged option agreement between the plaintiff and the defendant is nothing more than a receipt, and does not constitute a complete and full agreement between the parties.'

The appellant contends that the instrument constituted a contract rather than a receipt and therefore it was error to permit the introduction of oral evidence in regard to the alleged oral conditions.

As stated previously, this cause was an action at law and tried below without a jury. In this type case the lower court's findings are entitled to the weight of a jury verdict before the reviewing court, and these findings will not be disturbed unless it is shown that there is a total lack of substantial evidence to support the trial judge's conclusion. Calhoun v. Corbisello, Fla.1958, 100 So.2d 171; First Atlantic National Bank of Daytona Beach v. Cobbett, Fla.1955, 82 So.2d 870. The only evidence in the record in favor of appellant is the memorandum itself. The remaining testimony supports the contentions of the appellee that the option was subject to the conditions precedent that appellant was to sell $500,000 in life insurance; and that appellant was to remain employed with appellee until December 31, 1955. It is admitted by both parties that neither of these conditions was fulfilled. As we read the record and apply the above rule we cannot conclude that there was a total lack of competent and substantial testimony to support the judgment of the trial court.

The appellant contends that if this court finds the instrument to be a contract and not a receipt, that the cause would have to be reversed on the ground that the parol evidence rule should have been applied so as to exclude the oral testimony concerning the instrument. The reason for this contention being that the general rule excluding parol evidence which is sought to be introduced to vary the terms of a written contract does not apply to a receipt. See Schmitt v. Bethea, 78 Fla. 304, 82 So. 817. This distinction is illustrated in IX Wigmore, Evidence, 3rd ed., § 2432 as follows:

'Receipts and Releases; Bills of Lading. A receipt--i. e. a written acknowledgment, handed by one party to the other, of the manual custody of money or other personalty--will in general fall without the line of the rule; i. e. it is not intended to be an exclusive memorial, and the facts may be shown irrespective of the terms of the receipt. This is because usually a receipt is merely a written admission of a transaction independently existing, and like other admissions, is not conclusive (ante, § 1058).

'But where the writing is itself the very act, as where it grants a discharge or release of a claim, or embodies a new obligation, it obviously falls within the rule, and its terms cannot be overthrown.'

Assuming that this court would see fit to consider the instrument a contract then the issue is whether the issue of admitting evidence of the alleged prior oral agreement has been properly preserved for appellate review. The appellant did not object to the oral testimony which the appellee introduced concerning the oral agreement during the trial. The appellant contends that since the parol evidence rule is a rule of substantive law in Florida (Paradise Beach Homes, Inc. v. South Atlantic Lumber Co., Inc., Fla.App.1960, 118 So.2d 825) there can therefore be no waiver of substantive rights by a failure to object to the testimony during the trial, and that it is therefore proper to raise the issue for the first time on appeal.

Our research has disclosed only one case in Florida that touches directly upon this novel contention and that is Frank v. Pioneer Metals, Inc., Fla.App.1960, 121 So.2d 685, 688, which involved an action of distress for rent and a counterclaim by the tenant for money damages and/or the cancellation of the lease. The circuit court transferred the cause to the equity after which the chancellor decreed that the lease be cancelled and the plaintiff appealed. One of the contentions on appeal was that the chancellor erred in permitting parol testimony to very the terms of the written lease and to establish an implied warranty as to the suitability of the premises for manufacturing purposes. In affirming the chancellor, the court stated in regard to this contention:

'As to the appellant's last contention, we have reviewed the entire record and fail to find where the appellant objected to the admissibility of any evidence or testimony upon the ground now urged. Hoving failed to object to the admission of parol testimony at the trial, the appellant can hardly be heard now to complain of the chancellor's actions in which she at least tacitly acquiesced.' (Emphasis added.)

The above quoted statement correctly and soundly states what we feel is the applicable view on this issue. It is noted, however, that in 4 C.J.S. Appeal and Error § 290, at page 870, the text writer states:

'The rule that objections cannot first be urged in the appellate court to the improper admission of evidence is applicable to the admission of parol evidence, except where the parol evidence rule is regarded as a rule of substantive or as a rule of positive law rather than merely a rule of evidence.'

Cases arising in twenty-two different...