Miller-Dunn Co. v. Green
| Decision Date | 11 February 1944 |
| Parties | MILLER-DUNN CO., Inc., v. GREEN. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Dade County; Ross Williams, Judge.
Thomas H Anderson, of Miami, for appellant.
Arthur S Friedman, S.W. Shapiro, and Victor Levine, all of Miami, for appellee.
The declaration in this case filed by appellee alleges in substance that Miller-Dunn Company, Inc., a corporation, employed Perry Green to manufacture 850 small metal pumps, Miller-Dunn Company, Inc., to furnish all material and pay $12 for each pump and Green to furnish all labor. Some material was delivered to Green; he begar, work on the pumps but Miller-Dunn Company Inc., breached its contract by removing the material from Green's premises.
A second count charged anticipatory breach of the contract in different phraseology but was not materially different from the first. A demurrer to the declaration was overruled and eight pleas including the general issue and special traverses were then filed. Defendant was later permitted to file a ninth plea which alleged that plaintiff so negligently performed his duties that the pumps were ruined to defendant's damage in the sum of $10,000 which it should be permitted to recoup from the plaintiff's claim. The cause went to trial on these issues resulting in a verdict for the plaintiff in the sum of $1640. This appeal is from the judgment entered on that verdict.
Numerous questions are argued but we rest this decision on that of whether or not there was a contract between appellant and appellee and whether or not there was an accord and satisfaction. We have reached the conclusion that question one must be answered in the negative and question two in the affirmative and when done all other questions become nil.
As to whether or not there was a contract between the parties, the evidence shows nothing more than an inquiry by appellant as to whether Perry Green could make the pumps in question. The declaration relies on an express promise by oral agreement. It is shown that an agent of Miller-Dunn Company asked Green if he could make 850 pumps or words to that effect but this without more did not constitute an offer with an acceptance which is necessary to constitute an enforceable contract. In other words, we find nothing based on a valuable consideration whereby Miller-Dunn Company binds itself to perform form or forbear to perform an act that gives Green a right to demand and enforce performance. Moulton v. Kershaw, 59 Wis 316, 18 N.W. 172, 48 Am.Rep. 516; United States v. Baltic Mills Co., 2 Cir., 124 F. 38; Webster Lumber Co. v Lincoln, 94...
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...to bar that party's claim for further payment. Burke Co. v. Hilton Devel. Co., 802 F.Supp. 434 (N.D.Fla.1992); Miller-Dunn Co., Inc. v. Green, 154 Fla. 72, 16 So.2d 637 (1944) (where a party cashes a check but protests that additional payment is necessary to fully satisfy the alleged debt, ......
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...and satisfaction even though the party to whom paid declares that he takes it only in part satisfaction ." Miller-Dunn Co. v. Green , 154 Fla. 72, 16 So. 2d 637, 638 (1944). (emphasis added). Thus, a party who so accepts a payment tendered in full cannot cabin the legal effect of its accept......
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Yelen v. Cindy's, Inc., 79-2294
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