Martin v. Highway Equipment Supply Co.
| Decision Date | 24 February 1965 |
| Docket Number | No. 5554,5554 |
| Citation | 172 So.2d 246 |
| Parties | Jacob S. MARTIN, d/b/a J. S. Martin construction Company, Appellant, v. HIGHWAY EQUIPMENT SUPPLY COMPANY, Inc., a Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
Mateer, Colling & Young, Orlando, for appellant.
Smith, Sheldon & Smith, Orlando, for appellee.
BARNS, PAUL D., Associate Judge.
This is an appeal from a final judgment of dismissal of appellant's complaint, based on defendant's motion to dismiss. We affirm. The complaint alleges that the oral understanding between the plaintiff and defendant was that defendant would lease certain equipment to the plaintiff at $1,000.00 per month rental; that at the end of five months performance by the plaintiff the defendant would sell the equipment to the plaintiff for $31,000.00 toward which purchase price all the previous payments of rental would be credited.
Plaintiff's complaint further alleges that pursuant to their previous oral understanding the plaintiff and defendant in part performance of the oral understanding entered into a written lease agreement on or about January 30, 1961, for the equipment at the rental as previously agreed, to-wit: $1,000.00 per month; that plaintiff, in June, 1961, attempted to protect his rights under the oral agreement by tendering to the defendant an amount of money equal to the difference between the rental paid and the agreed purchase price, which tender was refused. (The amount tendered is not stated.); and, that the defendant refused to honor the entire oral agreement and forced plaintiff to give up the equipment on or about May 10, 1963.
Plaintiff's complaint sounds in damages for a breach of the oral portion of the understanding reached by the parties before the execution and delivery of the written lease. Plaintiff claims that the oral agreement bearing on his right to purchase was an inducement to him to enter into the written lease agreement. The language of the complaint in this respect is:
'* * * As further inducement and consideration offered by defendant to the plaintiff to persuade plaintiff to enter into said lease agreement, * * * in the alternative and at plaintiff's option, defendant promised to enter into a contract of sale of said crane and associated equipment after said five (5) months performance under the proposed lease agreement for the same purchase price set forth above and that all prior monthly payments would be applied as a credit to plaintiff towards the aforementioned purchase price and that upon the total of all such monthly rental payments [sic] reaching the sum of Thirty-One Thousand ($31,000.00) Dollars, defendant would convey title to the said crane and associated equipment to the plaintiff and plaintiff agreed to enter into said lease and purchase agreement.'
Plaintiff's complaint states that the agreement for the sale of the equipment was oral and fails to allege anything that would remove the agreement from being within the application of the statute of frauds relating to the sale of personal property. The statute, viz., Section 725.02, F.S.A. reads:
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...of the claim." This same quotation was set out with approval and italicized in the Florida case of Martin v. Highway Equipment Supply Co., Inc., supra [172 So.2d 246 (Fla. 2d DCA 1965) ]. The U.S. Court of Appeals for this, the fifth circuit, has, in numerous cases in recent years, been rev......
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...the District Court of Appeal, Second District, in Ahrens v. Hayworth, 189 So.2d 163 (Fla.App.2d 1966), and Martin v. Highway Equipment Supply Co., 172 So.2d 246 (Fla.App.2d 1965). The question is whether the District Court erred in concluding petitioner's allegations failed to show a cause ......
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