Cutler Gate Bldg. Corp. v. U.S. Leasing Corp., 63-832
| Decision Date | 16 June 1964 |
| Docket Number | No. 63-832,63-832 |
| Citation | 165 So.2d 207 |
| Parties | CUTLER GATE BUILDING CORP., a Florida corporation, and Edward Edwards, Appellants, v. UNITED STATES LEASING CORPORATION, a California corporation, Appellee. |
| Court | Florida District Court of Appeals |
Paul A. Louis, Bertha Claire Lee, and Charles A. Williams, Miami, for appellants.
Febibelman, Friedman, Hyman & Britton, Miami, Herbert Stettin, Miami Beach, and John P. Durant, Miami, for appellee.
Before CARROLL, HORTON and TILLMAN PEARSON, JJ.
The appellants, defendants below, seek review of an adverse summary final judgment. We reverse.
The appellee, the owner of a business machine, executed a three-year lease of the machine to the appellant Cutler Gate Building Corp. (hereinafter referred to as Cutler) as the lessee, and the appellant Edwards as guarantor, whereby Cutler agreed to pay the appellee a monthly sum for a period of 36 months for the use of the machine. The lease contained an option to purchase, upon the expiration of the lease period, for a fixed percentage. Shortly after the machine had been delivered to the appellant Cutler, the appellee was notified by Edwards that Cutler was not in a position to continue the lease agreement, and requested that appellee advise where and to whom the machine should be returned. Although the date is not clear, apparently the machine was returned to the appellee within a space of some three months after it had been placed with Cutler.
The appellee made demand upon the appellants for the unpaid balance due on the lease agreement which the appellants refused and as a result, this suit ensued. The total amount of the lease for the 36-month period was $1,031.75. The appellee in its complaint claimed damages for $1,093, plus interest, costs and reasonable attorney's fees. The appellants answered the complaint by admitting the execution of the contract but denying the remaining allegations of the complaint. As separate defenses, the appellants urged (1) that the lease agreement was in fact a conditional sales contract, and (2) that the appellee had repossessed the equipment, and by so doing, had elected its remedy and should not be permitted to pursue this action for the debt. Motion for summary judgment was filed by the appellee supported by the affidavit of an officer of the appellee corporation. There was also filed an affidavit as to a reasonable attorney's fee executed by an attorney practicing law in Dade County. The appellant Edwards filed an affidavit in opposition to appellee's motion for summary judgment in which he contended that within ninety days of the execution of the lease, he had advised the appellee that Cutler could not continue business and that appellee should pick up its machine; that the appellee had made several calls from its California office to the affiant, advising that its agent would pick up the machine; that the machine was never used, was in good condition; and that the appellee had repossessed it. There is a further allegation in Edwards' affiravit to the effect that he had offered to pay rental on the machine up to the time of repossession by appellee. A second affidavit was filed by the appellee which more or less delineated the method by which it had arrived at the sum claimed. Upon the pleadings and the affidavits of the parties, the court entered summary final judgment in favor of the appellee for the amount claimed in the complaint, together with interest, costs and attorney's fees. This appeal followed.
The appellants contend that the appellee terminated the lease by repossessing the equipment and was therefore entitled only to rent accrued up to the time of the repossession. In addition, they urge that the lease agreement is in reality a conditional sales contract and that under the law applicable thereto, the holder of the contract cannot repossess the chattel and also pursue the purchaser for...
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