Jackson Grain Co. v. Kemp

• Decision Date: 27 July 1965
• Docket Number: No. 4614,4614
• Citation: 177 So.2d 513
• Parties: JACKSON GRAIN COMPANY, a Florida Corporation, Appellant, v. W. L. KEMP, Appellee.
• Court: Florida District Court of Appeals

Page 513

177 So.2d 513

JACKSON GRAIN COMPANY, a Florida Corporation, Appellant, v. W. L. KEMP, Appellee.

No. 4614.

District Court of Appeal of Florida, Second District.

July 27, 1965.

Charles W. Pittman, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.

Robert S. Edwards, of Liles, Edwards & Goodrich, Plant City, for appellee.

WILLIAMS, O. EDGAR, JR., Associate Judge.

This is an appeal from an order granting a motion to dismiss the amended complaint and dismissing the cause with prejudice to the appellant who was plaintiff below.

The original complaint alleged that the Appellee was indebted to Appellant in the amount of $1,153.84 by reason of a letter, a copy of which was attached thereto, and that the Appellee had failed and refused to pay said sum notwithstanding the demand by the Appellant. The attached letter was addressed to Appellant and was purportedly signed by the Appellee. It first confirmed Appellee's agreement with the Appellant with respect to shipments of dairy feeds which were to be made by the Appellant to the Appellee and then confirmed the terms agreed upon by the parties, the Appellee agreeing to pay by the tenth day of each month until the Appellee gave written notice to the contrary. It then contained the following paragraph which was the basis of Appellant's cause of action:

'I have also agreed to make payment to you of the sum of $1,534.84 respecting shipments made to George and Eleanor Kemp Dairy for balance due on purchase from June 2, 1960 through June 22, 1960. I will make payment with respect to these invoices on the following basis: 90 days from above date.'

The lower court entered an order dismissing the complaint '* * * for reason that it fails to state a cause of action in that no consideration is alleged for the agreement asserted in the complaint, * * *' and granting leave to amend. The Appellant then filed an amended complaint which was for all purposes identical with the original except that it included a paragraph reading as follows:

'4. As consideration for the promise of the Defendant to make payment of the sum of One Thousand One Hundred Fifty-three and 84/100 Dollars ($1,153.84) as aforesaid Plaintiff agreed to withhold for ninety (90) days the collection of said sum, and further that Plaintiff agreed to release to the Defendant certain checks covering milk produced by the Kemp Dairy.'

After a subsequent motion was made by the Appellee to dismiss the amended complaint, the court entered its order granting the motion and dismissing the amended complaint with prejudice specifically finding '* * * as a matter of law that the writing relied upon by the plaintiff in these proceedings is defective for lack of consideration.' The court cited Lines v. Smith, 1850, 4 Fla. 47, as authority for its action and stated as follows:

'The above referenced case holds that a writing relied upon for the assumption of a third party debt subsequent to the making of said debt must recite on its face the consideration for the assumption and/or guarantee and it is apparent from the exhibit attached to plaintiff's complaint that the writing relied upon by the plaintiff in these proceedings does not recite or in any way reflect a consideration for the execution of such instrument or the assumption of said indebtedness.'

It may have been, since Lines v. Smith, supra, was cited by the lower court as authority for its action, that the lower court was concerned more with the Statute of Frauds than lack of consideration, but in either event the Appellant argues that such matters constitute affirmative defenses and must be pleaded in an answer filed in response to the complaint; such defenses not being available in a motion to dismiss. It is true that this rule pertaining to affirmative defenses was set down by the District Court of Appeal for the First District in the case of Fletcher v. Williams, Fla.App., 153 So.2d 759, and was adopted by this court in Carson v. City of Fort Lauderdale, Fla.App., 155 So.2d 620, wherein Fletcher v. Williams was quoted as follows:

'If a complaint * * * states a cause of action in accordance with either statutory, common law or equitable principles, the complaint will be sufficient to withstand a motion to dismiss it. If a defendant elects to assert an affirmative defense as a bar to the action, such defense must be pleaded in an answer filed in response to the complaint. Affirmative defenses may not be asserted as grounds for a motion to dismiss the complaint, even though the availability of the defense as a bar to the action may appear on the face of the complaint. (Emphasis added) See also Tuggle v. Maddox, Fla.1952, 60 So.2d 158; Stone v. Stone, Fla.App.1957, 97 So.2d 352.'

This Court, however, recently distinguished the rule in its applicability to Rules 1.8(d) and 1.11(b), Fla. Rules of Civil Procedure, in Martin v. Highway Equipment Company, Fla., 172 So.2d 246, wherein it was stated:

'When the complaint affirmatively shows that the claim is based on an oral contract, the defense of the statute of frauds may be raised by a defendant by motion to dismiss under Rule 1.11(b), Rules of Civil Procedure, which rule provides that the defense of '(6) failure to state a cause of action' may be made by motion. Rule 1.11(b) is like Rule 12(b), Federal Rules of Civil Procedure, except that clause (6) of the federal rule reads '(6) failure to state a claim upon which relief can be granted,' which language of the federal rule is nothing more or less than the definition of a 'cause of action.' Both rules mean the same.

'Volume 2 Moore's Federal Practice, 2nd Ed., § 12.08, p. 2245, states: 'A (complaint) may be dismissed on motion if clearly without any merit; and this want of merit may consist in an absence of law supporting a claim of the sort made, or of facts sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the claim.' Since plaintiff's alleged oral contract comes within the scope of the statute of frauds, supra, it is 'not good;' the statement of the claim discloses that the contract relied upon is oral, which disclosure necessarily defeats the claim. If the complaint had merely alleged the contract without disclosing whether it was oral or written, then with a liberal construction of the complaint, on motion to dismiss, the court could not rightfully hold that it failed to state a claim on which relief could be granted and it would have been error to have sustained the motion to dismiss. As stated by Moore, supra, 'But a claim should not be dismissed for insufficiency unless it appears to a certainty that the plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.' Rule 8(c), [sic] Rules of Civil Procedure, requires that a party in pleading to a preceding pleading shall set forth affirmatively the defense of the statute of frauds, but Rule 1.11(b) and Rule 8(c) [sic] are not mutually exclusive in...