Minsky's Follies of Florida v. Sennes

• Decision Date: 17 September 1953
• Docket Number: No. 14266.,14266.
• Citation: 206 F.2d 1
• Parties: MINSKY'S FOLLIES OF FLORIDA, Inc., v. SENNES.
• Court: U.S. Court of Appeals — Fifth Circuit

206 F.2d 1 (1953)

MINSKY'S FOLLIES OF FLORIDA, Inc., v. SENNES.

No. 14266.

United States Court of Appeals Fifth Circuit.

August 6, 1953.

Rehearing Denied September 17, 1953.

Ella Jo Stollberg, Hollywood, Fla., S. O. Carson, Miami, Fla., for appellant.

Robert G. Young, W. L. Gray, Jr., Blackwell, Walker & Gray, Miami, Fla., for appellee.

Before BORAH, RUSSELL, and STRUM, Circuit Judges.

STRUM, Circuit Judge.

This is an action at law to recover damages for the alleged breach of an oral agreement to enter into a lease of real property for a period longer than one year.

Upon the ground that the statute of frauds had not been complied with, the district judge dismissed the suit on the pleadings insofar as plaintiff sought recovery in the sum of $15,000 for loss of use of the premises involved. As to other items of claimed damage, which aggregate less than $3,000, the district judge, upon the ground that the requisite jurisdictional amount was lacking, remanded the cause to the state court from whence it had been previously removed to the United States District Court. Plaintiff below appeals as to both the dismissal and the remand.

It is alleged that shortly prior to June 8, 1950, plaintiff below, Minsky's, as proposed lessor, and defendant below, Sennes, as proposed lessee, commenced negotiations for a three year lease, commencing October 10, 1950, upon premises in Broward County, Florida, popularly known as Colonial Inn, furnished for and used as a seasonal nightclub and restaurant. The negotiations continued until September 20, 1950, when it is alleged that the parties orally agreed upon the terms of a lease.

Plaintiff had a written lease prepared, and it is alleged "That on or about October 11, 1950, the defendant approved said lease agreement, and again then and there agreed to execute same." The parties being in different cities, defendant Sennes sent plaintiff several letters and telegrams during the period from October to December, 1950, in which he referred to the "Colonial Inn deal," and "the lease of the Colonial Inn," and promised to come in at an early date and execute the lease, but did not do so. Nor did defendant make the $10,000 deposit required by the lease as security for his performance thereof, although he tendered a check for $2,500 on October 18, 1950.

These letters and telegrams, except the final telegram, were signed "Frank," although the words "Frank Sennes" were typewritten beneath that signature on the letters. The only description of the premises appearing in these communications is the "Colonial Inn." The proposed lease, containing a definite legal description, was never executed by either party.

Finally it is alleged that after making plaintiff a counter proposal "on the Colonial Inn deal," on December 5, 1950, which was not accepted, defendant on December 11, 1950, telegraphed plaintiff that on advice of his doctor he could not "go into the Colonial Inn," and returned the proposed lease, unexecuted. This telegram is signed "Frank Sennes."

Meanwhile, at the express request of defendant, plaintiff had procured a liquor license for 1951, at a cost of $1,000, for use in the Colonial Inn, which was of no value to plaintiff; had employed a watchman for said premises, at $100 per month; had employed counsel to draw the proposed lease, at a cost of $450; and had incurred other incidental expenses for long distance telephone calls, and the like. Plaintiff sues to recover these expenses, as well as for loss of use of the premises from October 10, 1950, to October 30, 1951, in the sum of $15,000, plaintiff having sold the premises on the latter date.

The Florida statutes provide that, with exceptions not material here, no interest in lands for a term of more than one year shall be created in any other manner than by instrument in writing, signed in the presence of two subscribing witnesses by the party creating such estate or interest. Section 689.01, Fla.Stat.1951, F.S.A.

Section 725.01, Fla.Stat.1951, F.S.A., provides: "No action shall be brought * * upon any contract for the sale of lands, * * * or for any lease thereof for a period longer than one year, * * * unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith * * *."

In order to satisfy the latter statute, the writing must be certain as to the parties, the subject matter, the promises upon both sides, and the consideration. Alton Beach Realty Co. v. Henderson, 92 Fla. 689, 110 So. 256. In order that there be a contract, the parties must have a definite and distinct understanding, common to both, and without doubt or difference. Unless all understand alike, there can be no assent, and therefore no contract. Webster Lbr. Co. v. Lincoln, 94 Fla. 1097, 115 So. 498. Sennes' letter to plaintiff, dated December 5, 1950, which was the last communication prior to his final refusal to enter into the lease, made plaintiff a counter proposition, which was not accepted, and the matter remained thus when Sennes finally refused to sign on December 11, 1950.

We recognize the doctrine that the memorandum required by section 725.01, supra, may consist of more than one writing. But when such a situation exists, some of the writings being signed by the party to be charged, and others not signed by him, in order that the unsigned writings may be used to supply essential elements of the contract, there must be some reference to them in the signed writing of such party. The signed memorandum of the contract must show the contract between the parties, either on its face or...