Castorri v. Milbrand, 1428

• Decision Date: 09 March 1960
• Docket Number: No. 1428,1428
• Citation: Castorri v. Milbrand, 118 So.2d 563 (Fla. App. 1960)
• Parties: Albert R. CASTORRI, Appellant, v. Otto E. MILBRAND and Mary Milbrand, co-partners, d/b/a Milbrand Construction Co., Appellees.
• Court: Florida District Court of Appeals

Page 563

118 So.2d 563

Albert R. CASTORRI, Appellant, v. Otto E. MILBRAND and Mary Milbrand, co-partners, d/b/a Milbrand Construction Co., Appellees.

No. 1428.

District Court of Appeal of Florida, Second District.

March 9, 1960.

Thomas E. Lee, Jr., Miami, for appellant.

Robert C. Abel, Jr., Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for appellees.

ALLEN, Chief Judge.

This is an appeal by the plaintiff-appellant from the entry of a summary final judgment in favor of defendant-appellee. The plaintiff, Castorri, filed an amended complaint for damages resulting from breach, by the defendants, of an alleged oral contract whereby defendants were to employ plaintiff to manage defendants' construction firm for a term of five years. The defendants filed an answer denying that the alleged contract was for five years; that the plaintiff was dismissed for improper performance of his duties; and as an affirmative defense, alleged that the purported contract was void and unenforceable under sec. 725.01, Florida Statutes, F.S.A. Thereafter plaintiff's deposition was taken and a motion for summary judgment was filed by defendants on the ground that the alleged contract was executed in Michigan and under the law of Michigan it was invalid. The plaintiff's deposition and applicable Michigan statutes were filed in support of this motion. The lower court entered an order granting defendants' motion and subsequently entered summary final judgment in favor of defendant.

The plaintiff, as a master sergeant in the U. S. Army, was stationed in Rio de Janeiro in 1951 during which time he met the defendant Milbrand. Milbrand learned that plaintiff was desirous of leaving the Army and mentioned that plaintiff might like to work for defendant. After a series of letters and telephone calls, the plaintiff met with the defendant in Detroit, Michigan, in 1953, to further discuss the potential employment. The plaintiff returned to Brazil and after further correspondence, he was requested by defendant to come to Detroit but to stop in Fort Lauderdale and make some telephone calls in regard to some land that the defendant planned to purchase. The plaintiff performed the request and went on to Detroit. On January 18, 1954, in Detroit, the defendant hired plaintiff as general manager of a construction business to be set up in Fort Lauderdale. Under this oral agreement, plaintiff was to receive $7500 for the first year, $8500 for the second year, $10,000 for the third year, $12,000 for the fourth year, and $20,000 for the fifth year, all of which would be paid in monthly installments.

After the agreement was made on January 18, 1954, the defendant went to Fort Lauderdale to conduct negotiations for the acquisition of property for the proposed construction company. The plaintiff remained in Detroit and collected information from the F.H.A. and other parties in regard to how to administer the residence construction business which plaintiff was to manage for defendant in Florida. The plaintiff and defendant again met in Detroit during February, 1954, and discussed the progress of the proposed business. It appears that plaintiff went on defendant's payroll sometime during the Fall of 1954, in Fort Lauderdale, and continued to perform general managerial duties of the defendant construction company until April 26, 1956, at which time the defendant Milbrand fired him.

The plaintiff in his complaint sought all unpaid salary for the balance of the five year contract. The defendant admitted paying plaintiff $7500 the first year and was paying plaintiff on an $8500 a year basis when plaintiff was dismissed.

The defendants, in their motion for summary judgment, alleged that plaintiff's deposition shows that the oral agreement was entered into in Detroit; that the contract is to be therefore governed by the laws of Michigan; and that since the law of Michigan declares such agreement void, the defendants are entitled to judgment as a matter of law. The lower court in its order granting the summary judgment for defendant stated that plaintiff agreed that the contract was made in Michigan; that under Michigan statutes the contract is void; and that, therefore, the only question before the court is whether the law of Michigan or Florida governs the interpretation and validity of the contract. The court went on to hold that the law of Michigan governs the validity and construction of the contract since the contract was made in Michigan. The plaintiff then filed this appeal contending that the law of Florida should apply in determining the validity of the subject contract.

We, therefore, have the situation of the parties to the litigation entering into an oral contract in Michigan whereby the defendant was to employ the plaintiff for five years, at specified progressive annual salaries, in Florida. The plaintiff remained in Michigan after entering into this contract and performed certain work which lasted for several weeks, whereupon he continued his employment in the State of Florida. If the law of Michigan is applied, the plaintiff is not entitled to recover. The Statute of Frauds of the State of Michigan, Laws of the State of Michigan, C.L.1948, § 566.132, Stat.Ann.1953 Cum.Supp. § 26.922, provides:

'In the following cases specified in this section, every agreement, contract and promise shall be void, unless such agreement, contract or promise, or some note or memorandum thereof be in writing and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized, that is to say:

'1. Every agreement that, by its terms, is not to be performed in 1 year from the making thereof.'

The Supreme Court of Michigan has construed the above provision of their statute in the case of McGavock v. Ducharme, 192 Mich. 98, 158 N.W. 173, 174, wherein it held after comparing statutes of frauds which had been declared procedural as compared to statutes of frauds which had been declared to be substantive:

'The statute under consideration is one...