Rowland v. Ewell
| Decision Date | 07 April 1965 |
| Docket Number | No. 4819,4819 |
| Citation | 174 So.2d 78 |
| Parties | Clyde H. ROWLAND, Appellant, v. George W. EWELL, Jr., Appellee. |
| Court | Florida District Court of Appeals |
William W. White, Jr., of Wilder & White, Clearwater, for appellant.
John E. M. Ellis of Ellis, Logan & Page, St. Petersburg, for appellee.
This is an appeal from a summary judgment entered against Clyde H. Rowland, the plaintiff, in a suit for breach of an alleged oral contract of employment with George W. Ewell, Jr., defendant.
The plaintiff alleged that he had agreed to work for the defendant, George W. Ewell, Jr., as manager of a mercantile store for a period of not less than five years, and in return the defendant agreed to pay the plaintiff in addition to his weekly salary a bonus of 1% of the personal gross sales generated by the plaintiff during and at the end of a 5-year period conditioned upon the plaintiff remaining in the employ of the defendant for said period. The plaintiff further alleged that he remained in the employ of the defendant for said five years; that he made demand for said bonus; and that the defendant refused to pay the same.
The defendant acknowleged the employment and bonus arrangement, but alleged that it was further conditioned upon an increase in the sales and profit in future years as a result of plaintiff's association with the store; that the sales and profits did not increase; that the plaintiff's weekly salary was increased during said period, and in addition, he received bonuses at the end of each year; that the plaintiff was advised of the defendant's intention to sell the business before the end of the 5-year period, at which time the defendant assumed responsibility for management of the store. The defendant sold the store in January 1963, and plaintiff continued to work for the new store owner and made no damand on the defendant for the bonus until after his employment by the defendant had terminated.
The defendant, in addition, plead as a defense the Statute of Frauds, F.S.A. § 725.01, in that the alleged agreement was oral and was not to be performed within the period of one year.
Although there was issues of fact as to the exact conditions and details of the oral agreement to pay the bonus, these issues are immaterial insofar as the defense of the statute of frauds is concerned, and as to that issue the court found that there was no genuine issue as to any material fact, and that the defendant was entitled to judgment as a matter of law, because the agreement was barred by the statute of frauds. We agree.
The Florida courts have held that part or complete performance of an agreement, not capable of performance within one year and not in writing, may be enforced under certain circumstances. The cases which have set forth exceptions have involved contracts for the purchase of realty, Battle v. Butler, 1939, 138 Fla. 392, 189 So. 846. This case and the others involving contracts for purchase of realty uniformly hold that the elements necessary to take them out from under the operation of the statute of frauds are that the purchaser must enter into possession, pay all or at least a part of the consideration, and make valuable and permanent improvements. Undoubtedly, this exception has been recognized under such circumstances because the acts are consistent with the existence of a contractual relationship.
On the other hand, in Miller v. Murray, Fla.1953, 68 So.2d 594, enforcement of an alleged oral contract to purchase realty was denied because the plaintiff had previously leased the premises. The court denied the relief requested because the possessory interest of the plaintiff, as well as the other acts relied on as constituting part performance were as 'equally as consistent with a tenancy status' as with that of a vendee. The act or conduct relied on as constituting part performance must be referable exclusively to the contract and nothing else. Purvis v. Malloy, etc., 1937, 129 Fla. 191, 176 So. 71; Miller v. Murray, supra. The equitable doctrine of part or complete performance of an agreement to remove it from the statute of frauds has also been applied to verbal contracts to make mutual wills. Keith v. Culp, Fla.App.1959, 111 So.2d 278.
The statute of frauds was enacted to prevent perjury and the enforcement of claims based on memories made faulty by the lapse of time, or loose verbal statements, and should be strictly construed. Yates v. Ball, 1938, 132 Fla. 132, 181 So. 341. This doctrine has been followed in Michigan in the case of Ordon v. Johnson, 1956, 346 Mich. 38 77 N.W.2d 377, and in New York in the case of Jaffe v. New York Towers, Inc., City Ct.1951, 108 N.Y.S.2d 193.
Apparently there have been no decisions in Florida on the peculiar circumstances now before the court. The question of the application of the part-performance doctrine to wage or bonus agreements to remove them from the statute of frauds has arisen in numerous other jurisdictions and is the subject of an extensive annotation entitled 'Statute of Frauds--Performance' in 6 A.L.R.2d 1053, in which it is stated under a section entitled 'Contracts for Services in General' at page 1074:
'In accordance with the general rule (see subsection 3 supra) it has been held or recognized that the part-performance of an oral contract for employment not to be performed within a year did not take the contract out of the statutes of fraud.'
The annotator's conclusion is substantiated by decisions in other jurisdictions decided on facts similar to those in the case at bar. The facts here do not show fraud or other peculiar or unusual circumstances in the absence of which the courts of Florida have consistently applied the statute of frauds. Williams v. Faile, Fla.App.1960, 118 So.2d 599. To the contrary, the facts show that the act or conduct relied on as constituting part-performance was the plaintiff's employment from week to week for which he was paid from week to week. Thus it cannot be said that his employment was exclusively referable to the agreement to pay a bonus. To like effect, the facts do not show that the plaintiff changed his position to his prejudice in reliance upon the oral agreement which he would not have doen except for the agreement, or that the plaintiff has...
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