Tobin & Tobin Ins. Agency, Inc. v. Zeskind
| Decision Date | 24 June 1975 |
| Docket Number | No. 74--1542,74--1542 |
| Citation | 315 So.2d 518 |
| Parties | TOBIN & TOBIN INSURANCE AGENCY, INC., a Florida Corporation, Appellant, v. Stanley ZESKIND, Individually and Great West Life Assurance Company, a Canadian corporation, licensed to do business in the State of Florida, Appellees. |
| Court | Florida District Court of Appeals |
Michael M. Tobin and Stephen K. Katz, Coral Gables, for appellant.
Leonard Sussman, Steel, Hector & Davis, Patricia Ann Seitz, Miami, and Henry W. Clar, Miami, for appellees.
Before BARKDULL, C.J., and HENDRY and HAVERFIELD, JJ.
Appellant, plaintiff in the trial court, seeks review of an adverse final summary judgment which held the plaintiff's cause of action, based upon an alleged oral contract, unenforceable by virtue of the statute of frauds (Fla.Stat. § 725.01, F.S.A.). We affirm.
The gravamen of the appellant's third amended complaint is that an oral agreement was formed between its president, Leonard Tobin, and defendant Stanley Zeskind, an insurance agent for the defendant, Great West Life Assurance Company, whereby the appellant would refer business to the defendants and in return the commissions would be split between the appellant and Zeskind.
Deposition testimony was taken of Leonard Tobin and Zeskind, and subsequently each party moved for an entry of a summary judgment.
While Zeskind's deposition testimony reveals a firm denial by him of the existence of an express oral contract to split commissions, we have assumed that such a contract did exist for purposes of our consideration of the issues pertaining to the statute of frauds.
Appellant makes several contentions in support of his position that the statute of frauds does not preclude recovery under the alleged agreement. First, appellant argues that the contract may be enforced because under the docrine of part performance, the oral agreement is removed from the effect of the statute of frauds. 1 This contention is without merit because the agreement at issue is one involving personal services, and part performance is not applicable to such contracts. Food Fair Stores, Inc. v. Vanguard Investments Co., Ltd., Fla.App.1974, 298 So.2d 515; Rowland v. Ewell, Fla.App.1965, 174 So.2d 78.
Next, appellant submits that the statute of frauds is not applicable to this contract because the agreement may be performed within one year. This contention is closely connected to a corollary assumption made by the appellant: that it is not suing upon a single indivisible contract, but rather upon a series of divisible contracts.
According to this logic, each referral made was a separate potential contract which upon the sale by Zeskind of an insurance policy became a binding obligation to pay the appellant a split commission.
It is our view, however, that appellant creates a strained interpretation of the agreement between the parties. We think there is but a single oral agreement at issue in which the defendants allegedly agreed to split All commissions resulting from All referrals. 2 Therefore, we hold that the agreement was not capable of performance within one year. See, Food Fair Stores, Inc. v. Vanguard Investments Co., Ltd., supra; Ostman v. Lawn, Fla.App.1974, 305 So.2d 871.
Finally, appellant seeks necessarily to agree with the appellees that no express oral contract existed; nevertheless, it is urged that appellant may recover for the reasonable value of its services under a theory of quantum meruit. See, Solutec Corporation v. Young & Lawrence Associates, Inc., Fla.App.1971, 243 So.2d 605.
Quantum meruit is an action derived from the common-life form of action known as general assumpsit. Ibid.; see generally, 28 Fla.Jur., Restitution and Implied Contracts § 3. At common law, general assumpsit was an action to enforce an implied promise, otherwise referred to as a 'quasi contract' or a contract implied in law. Cf., Tipper v. Great Lakes Chemical Co., Fla.1973, 281 So.2d 10, 13.
As a general rule, an action seeking to enforce an express...
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...Corp., 576 So.2d 748 (Fla. 3d DCA 1991); Johnson v. Edwards, 569 So.2d 928 (Fla. 1st DCA 1990); Tobin & Tobin Insurance Agency, Inc. v. Zeskind, 315 So.2d 518 (Fla. 3d DCA 1975); and Rowland v. Ewell, 174 So.2d 78 (Fla. 2d DCA 1965). Most recently, in Hospital Corporation v. Associates in A......
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