Cottages, Miami Beach v. Wegman

• Decision Date: 05 October 1951
• Parties: COTTAGES, MIAMI BEACH, Inc., et al. v. WEGMAN.
• Court: Florida Supreme Court

Page 439

57 So.2d 439

COTTAGES, MIAMI BEACH, Inc., et al. v. WEGMAN.

Supreme Court of Florida, en Banc.

Oct. 5, 1951.

Rehearing Denied March 25, 1952.

Harold Ungerleider, Miami Beach, W. O. Mehrtens and Evans, Mershon, Sawyer, Johnston & Simmons, all of Miami, for appellants.

Thomas Jean Ellis, Turk & Newman, Joel P. Newman and Vivian L. Scheaffer, all of Miami Beach, for appellee.

HOBSON, Justice.

This is a case wherein the appellee sought a decree directing a specific performance of an alleged agreement between her and her father, entered into during the latter's lifetime, providing that if appellee, who with her immediate family was residing in New York City, would come to live in Miami Beach and assist in the operation of the business which he wished to be conducted in connection with certain real property that he had agreed to purchase, he would vest in appellee a one-half interest in and to said property. She also prayed that Tillie Bell, Executrix of the estate of her deceased father, be ordered to transfer to her one-half of the total issued and outstanding corporate shares of Cottages, Miami Beach, Inc., a Florida Corporation, which, together with the one share of stock already owned by the appellee, would give appellee a total of one-half of the authorized and issued stock of the corporation; that the corporation account to the appellee for salaries due and owing her; that the corporation account to her for monies advanced by her to the said corporation; that the corporation account to appellee for one-half of its profits from June, 1945.

Samuel Bell, father of appellee, during his lifetime, wrote his daughter, appellee, requesting her to leave her home in New York City and come to live in Miami Beach for the purpose of assisting him in the operation of the business to be conducted in connection with certain real property which he was then in the process of purchasing. As an inducement to the appellee to accept his offer, the father promised his daughter that he would 'vest in her a one-half interest in and to the said described property.' Whereupon the appellee advised her father that the terms of his offer were acceptable to her. Thereafter the appellee gave up her home in New York City and moved, with her child, to Miami Beach, Florida, pursuant to the said agreement.

The letter that was written to the appellee by her father is not such a written memorandum as can be said to meet the requirements of the Statute of Frauds. Consequently, the agreement must be treated as an oral agreement to convey land. The appellee was permitted to testify that after the letters were received, and particularly the one in evidence, she came to Miami Beach in pursuance of said letters and fulfilled her part of the agreement.

In this equity suit the Chancellor betermined that appellee had established that she and her father during his lifetime entered into an agreement to form a partnership and that since the father failed to carry out such agreement appellee was entitled to a decree against the appellants directing that Tillie Bell, as Executrix of the Estate of Samuel Bell, deceased, transfer to appellee 24 shares of its corporate stock. Appellants insist that an agreement to form a partnership was not proved.

It is doubtful the decree can be sustained upon the theory that an agreement to form a partnership was established by the evidence. Nevertheless, we have held repeatedly that we will not reverse a final decree because the reason given by the Chancellor for entering such decree was erroneous, if the decree itself should be free from error. Sheridan v. Respess, 147 Fla. 626, 3 So.2d 704; County of Okeechobee v. Florida National Bank of Jacksonville, 145 Fla. 496, 1 So.2d 263, 274; McGregor v. Provident Trust Co., 119 Fla. 718, 162 So. 323; Roe v. Roe, 95 Fla. 488, 117 So. 108; Broward Estates Corporation v. Chillingworth, 93 Fla. 366, 112 So. 64.

The decree is sustainable on the theory that the evidence discloses such part performance as will take the oral agreement out of the statute of frauds. The agreement amounted to an oral promise to convey an interest in real property. The general rule is that the mere rendition of services by the plaintiff in reliance upon the defendant's parol promise to convey real estate to him, is not a sufficient part performance to warrant the specific enforcement of the oral agreement, where the services are capable of adequate pecuniary measurement and compensation. 49 Am.Jur. 773; 58 C.J. 1017; Rath v. Degener, 352 Ill. 135, 185 N.E. 223; Flannery v. Woolverton, 329 Ill. 424, 160 N.E. 762; Frizzell v. Frizzell, 149 Va. 815, 141 S.E. 868. There is also the rule that the rendition of services by the promisee in consideration of the promisor's oral pledge to convey an interest in land is ordinarily treated as equivalent to payment of the consideration of the contract, and, while this is not in itself sufficient part performance, the rendition of services together with possession of the property to which the contract relates is a sufficient part performance to take the contract out of the statute. 58 C.J. 1020; 101 A.L.R. 1095; Holmes v. Caden, 57 Vt. 111; Denlar v. Hile, 123 Ind. 68, 24 N.E. 170; Winfield v. Bowen, 65 N.J.Eq. 636, 56 A. 728; Ayres v. Short, 142 Mich. 501, 105 N.W. 1115.

This Court has held that the taking of possession and, in addition, the payment of some part or all of the consideration is such part performance as will take an oral contract out of the Statute of Frauds. Pedrick v. Vidal, 95 Fla. 952, 116 So. 857; Clark & Lewis v. Gardner, 91 Fla. 1059, 109 So. 192; Demps v. Hogan, 57 Fla. 60, 48 So. 998. Hence, the latter of the two aforementioned rules is applicable in this State.

However, if this case were controlled by the first mentioned general rule, we are of the view that the services rendered the father by his daughter are not susceptible 'of adequate pecuniary measurement and compensation.' It is true that the value of appellee's actual work in managing the property could be calculated on a dollars...