Gateway Cable T. V., Inc. v. Vikoa Const. Corp., O--196
| Decision Date | 21 October 1971 |
| Docket Number | No. O--196,O--196 |
| Citation | 253 So.2d 461 |
| Parties | GATEWAY CABLE T.V., INC., a corporation, Appellant, v. VIKOA CONSTRUCTION CORPORATION, a corporation, Appellee. |
| Court | Florida District Court of Appeals |
John Paul Howard, Jacksonville, for appellant.
Roland E. Williams, J., of Howell, Kirby, Montgomery, D'Aiuto, Dean & Hallowes, Jacksonville, for appellee.
Appellant-plaintiff Gateway Cable T.V., Inc. appeals an adverse directed verdict in favor of appellee-defendant Vikoa Construction Corporation in this breach of contract action. The sole point on appeal is that the trial court erred in directing a verdict in favor of defendant Vikoa because it did not formally execute the contract document.
Facts are recited in a light most favorable to plaintiff at the close of its case. Gateway is the owner of a franchise to construct and operate a community antenna television system in St. Augustine. Vikoa is engaged in the business of constructing and financing such systems. In October of 1968 the president of Gateway visited with officials of Vikoa at their home office in Hoboken, New Jersey, resulting in negotiations between the parties for the construction and financing of the St. Augustine system by Vikoa. During the early part of December 1968, a representative of Vikoa met with the president of Gateway in Jacksonville, Florida, at which time 'the basics' of a form contract furnished by Vikoa were filled out. Subsequently, negotiations continued by telephone between the parties as to changes in the form contract. As of this time (December 1968) Gateway was subject to a critical deadline. It had posted a $50,000 bond conditioned upon the completion of the proposed system at the end of June 1969. Also in December Vikoa conducted a helicopter survey for the proposed tower site. A second contract incorporating the changes was forwarded to Gateway by Vikoa, accompanied with a letter of transmittal dated January 9th. Around February 12th Vikoa's finance director, its Southeastern sales manager, and its construction coordinator met with Gateway officials in Jacksonville, Florida. Mr. Michael Joyce advised the group that, as finance director, responsibility of the project from Vikoa's standpoint rested upon his shoulders. After spending a day investigating the site for the system, the group jointly prepared the final document. As questions arose during preparation, Mr. Joyce telephoned his home office in Hoboken, and in this manner the final terms were agreed upon and typed. The formal contract as thus agreed upon was executed by Gateway officials. Gateway's president testified: '* * * the whole negotiations surrounded--were concerned (with) the fact that Vikoa Construction Company would come to Jacksonville to finalize the contract and there was no question whatsoever when they sent down their fine (finance) director that we had a contract, when he said we had one.' The contract executed by Gateway was at this time delivered to the Vikoa officials.
A day or two later the president of Gateway was advised by telephone conversations with officials of Vikoa that Gateway was to perform under the contract and inquiry was made as to Gateway's delay in forwarding a check in the sum of $5,000 called for in the contract. On February 17th another telephone conversation was had between the president of Gateway and Vikoa's finance director, who advised that 'we had a deal' and to send the $5,000. The president of Gateway forwarded the $5,000 on February 17th along with a cover letter detailing various acts of performances on Gateway's part pursuant to the contract. This check was promptly negotiated by Vikoa and the proceeds deposited in its bank. Numerous telephone and written conversations were subsequently had between Gateway and Vikoa officials pertaining to electronic devices, size of land for the tower, and other details as to the construction of the system. As of March 18th, on which date Gateway advised Vikoa of various acts on its part in performance of the contract, such as copies of papers forwarded to FCC, opinion letter from its Washington attorney relative to the FCC papers, and Florida Power and Light Company maps, the contract seemed to be progressing satisfactorily.
Subsequent to March 18th, Vikoa in telephone conversations with Gateway officials advised that a newly formed finance committee had turned down the contract; that Mr. Joyce's agreement was no longer binding; and that unless the interest rate or price per mile was changed, Vikoa would not perform. Gateway took the position that it had a binding contract which had been partly performed. On April 9th Vikoa forwarded to Gateway its check in the sum of $5,000 with a notation that same represented a return of deposit and was in full payment of all claims. This check has not been negotiated by Gateway. Approximately 90 days after it signed the contract with Vikoa, Gateway negotiated a contract with another firm to construct and finance the system.
Upon the conclusion of plaitniff's case, the trial judge advised the jury that the contract provided that it would not be binding on Vikoa until it was signed by two people at the home office; that it was clear plaintiff expected to receive a signed contract; and that defendant did nothing in furtherance of the contract. The trial judge, in directing a verdict for defendant Vikoa, stated:
We hold that under the undisputed facts of this case the trial judge erred in directing a verdict for defendant.
The trial judge...
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...but these facts may be shown in other ways, for example, by the acts or conduct of the parties.” Gateway Cable T.V., Inc. v. Vikoa Constr. Corp., 253 So.2d 461, 463 (Fla.Dist.Ct.App.1971). Indeed, the Bailee Letters themselves provide that BOA became “bound by the terms, provisions and cond......
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...but these facts may be shown in other ways, for example, by the acts or conduct of the parties." Gateway Cable T.V., Inc. v. Vikoa Construction Corp., 253 So.2d 461, 463 (Fla. 1st DCA 1971). See also Consolidated Resources Healthcare Fund I, Ltd. v. Fenelus, 853 So.2d 500, 503 (Fla. 4th DCA......
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...Grp., Inc. v. White Oak Equity Partners, LLC , 650 F. Supp. 2d 1213, 1228 (S.D. Fla. 2009) (quoting Gateway Cable T.V., Inc. v. Vikoa Constr. Corp. , 253 So. 2d 461, 463 (Fla. 1st DCA 1971) ); see also Fenelus , 853 So. 2d at 503 (party assented to the contract by performing under the contr......
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