American Atlantic Lines v. Ros Forwarding, Inc.

• Decision Date: 22 November 1983
• Docket Number: No. 83-42,83-42
• Citation: 441 So.2d 1153
• Parties: AMERICAN ATLANTIC LINES, Appellant, v. ROS FORWARDING, INC., Appellee.
• Court: Florida District Court of Appeals

Page 1153

441 So.2d 1153

AMERICAN ATLANTIC LINES, Appellant, v. ROS FORWARDING, INC., Appellee.

No. 83-42.

District Court of Appeal of Florida Third District.

Nov. 22, 1983.

Horton, Perse & Ginsberg and Edward Perse, Miami, for appellant.

Gelb & Spatz and Carl Spatz, Miami, for appellee.

Before HUBBART, NESBITT and JORGENSON, JJ.

PER CURIAM.

Affirmed. The statute of frauds prohibits actions based on unwritten promises to pay the debts of third parties in the absence of any independent consideration running to the guarantor. § 725.01, Fla.Stat. (1981); Baya v. Price, 222 So.2d 253 (Fla. 3d DCA 1969); cf. Jim & Slim's Tool Supply, Inc. v. Metro Communities Corp., 328 So.2d 213, 215 (Fla. 2d DCA 1976).

JORGENSON, Judge, dissenting.

Because this is not a case where the nature of the oral contract can be determined with certainty, see Titan Agencies, Inc. v. Kornreich & Sons, 355 So.2d 457 (Fla. 3d DCA 1978), I respectfully dissent.

The plaintiff, American Atlantic Lines, an ocean cargo carrier, appeals a final summary judgment in favor of the defendant, Ros Forwarding, Inc., a freight forwarder, in a suit to enforce an oral contract for the cost of shipping a third party's goods.

American alleged that its representative advised Ros that, because the shipper of the goods had no credit arrangement with American, American could not ship certain goods that had already been forwarded to American through Ros and loaded onto American's vessel. Vandeventer, Ros's employee, responded that Ros would not be responsible for the shipment and agreed that American should unload the goods. A short time later Vandeventer telephoned American's representative and told him Ros would guaranty American the shipping charges. Based on this telephone conversation American re-loaded the goods and delivered them to their destination. American's representative claims Vandeventer was told, and agreed, that American would be looking exclusively to Ros for payment. Vandeventer claims he only agreed to guaranty payment in the event the third party failed to pay American. Ros refused to pay American and asserted that the oral contract for payment was barred by Florida's Statute of Frauds, § 725.01, Fla.Stat. (1981). The trial court agreed, granting final summary judgment in favor of Ros.

The central issue before the trial court was whether Vandeventer's promise to pay the shipping costs to American was a guaranty and as such was collateral to the existing shipping contract between American and the shipper or whether the promise was "an original undertaking of the promisor himself supported by independent consideration flowing to him," Jim & Slim's Tool Supply, Inc. v. Metro Communities Corp., 328 So.2d 213, 215 (Fla. 2d DCA 1976); see Bensam Corp. v. Felton, 63 So.2d 278 (Fla.1953); Moore v. Chapman, 351 So.2d 760 (Fla. 1st DCA 1977); Troup Brothers, Inc. v. State of Florida, 135 So.2d 755 (Fla.2d DCA 1961).

The question of whether an oral promise is direct or collateral is one of fact. Hilkmeyer v. Latin American Air Cargo Expediters, 94 So.2d 821 (Fla.1957); Sanders v. Hodges, 109 Fla. 391, 147 So. 571 (1933); Maresh Sheet Metal Works v. N.R.G. Ltd., 304 N.W.2d 436 (Iowa 1981). Because of the conflicting evidence on this issue, giving rise to different reasonable inferences, it was error to grant summary judgment in Ros's favor. See Hilkmeyer; Titan; see also Hudson v. Ashley, 411 A.2d 963 (D.C.1980) (trial court erred in directing verdict on whether oral promise was a promise to pay the debts of another).

Even if the trial court had been correct in determining that the oral promise was a guaranty, because of the "leading...