Sill v. Ocala Jewelers, Inc.

• Decision Date: 02 May 1968
• Docket Number: No. J-390,J-390
• Citation: 210 So.2d 458
• Parties: Stewart S. SILL, Appellant, v. OCALA JEWELERS, INC., Appellee.
• Court: Florida District Court of Appeals

Page 458

210 So.2d 458

Stewart S. SILL, Appellant, v. OCALA JEWELERS, INC., Appellee.

No. J-390.

District Court of Appeal of Florida, First District.

May 2, 1968.

Rehearing Denied June 7, 1968.

Willard Ayres, of Green, Ayres, Swigert & Cluster, Ocala, for appellant.

John P. McKeever, of Pattillo, MacKay & McKeever, Ocala, for appellee.

WIGGINTON, Chief Judge.

Defendant in an action for debt on an open account for goods sold and delivered has appealed a summary final judgment entered in favor of plaintiff on the issues made by the complaint and the counterclaim filed thereto. Defendant contends that the trial court erred in the construction placed by it upon the statute of frauds and, because of such error, the judgment appealed should be reversed.

Plaintiff sued defendant for an account balance owed it for goods sold and delivered. Defendant's answer admitted the debt but questioned the exact amount claimed as alleged in the complaint. Defendant alleged by way of counterclaim that an agreement of novation had been entered into between the parties whereby plaintiff agreed to compromise and settle the indebtedness owed it by defendant in consideration of the payment of $100.00 cash and a conveyance by defendant to plaintiff of a certain described parcel of land in Levy County. Plaintiff answered the counterclaim denying that any agreement of novation had been entered into between the parties whereby the indebtedness sued upon had been compromised and settled, and that even if such an agreement had been consummated, it was unenforceable by virtue of the provisions of the statute of frauds.

Depositions of the parties and of an attorney formerly representing plaintiff reveal without dispute that if any agreement of novation had been entered into between the parties as alleged in defendant's counterclaim, it was entirely oral and no writing, note or memorandum thereof, was signed by either of the parties to the cause. In the summary final judgment appealed herein the trial court found that the agreement of novation alleged by defendant in his counterclaim as a defense to the action was unenforceable because of the provisions of the statute of frauds, and that since no genuine issue of any material fact existed with respect to plaintiff's claim for the balance owed it by defendant, plaintiff was entitled to judgment as a matter of law.

The statute of frauds upon which the trial court's judgment is based provides in pertinent part as follows:

'* * * No action shall be brought whereby to charge * * * any person * * * upon any contract for the sale of lands, * * * 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 * * *.' ¹

It is appellant's position that the above-quoted statute is intended to provide protection only to the vendor who is alleged to have orally agreed to make a conveyance of land, and is not intended to protect the vendee if he is the one charged in the action with liability under the contract. Appellant urges that the part of the above-quoted statute which makes reference to 'the party to be charged therewith' has reference only to the vendor who is alleged to have agreed to convey his land, and should not be construed to refer to the vendee who has allegedly agreed to purchase the land. Under appellant's interpretation of the statute, the owner of land may be held liable for an agreement to convey his property only if such agreement or some note or memorandum thereof shall be in writing or signed by him, whereas the vendee who is alleged to have agreed to purchase the land may be held liable under an oral agreement, and his liability is not dependent upon whether the agreement is reduced to writing or signed by him.

Conversely, appellee contends that the purpose and intent of the statute is to protect both the vendor and the vendee from liability on any agreement for the purchase or sale of land unless the agreement, or some note or memorandum thereof, is in writing and signed by the party against whom liability is sought to be imposed. Appellee construes that part of the statute which refers to 'the party to be charged therewith' to mean the party against whom relief is sought, whether that party be the alleged seller or the alleged purchaser.

There appears to be a division of authority in other states of our country on the point...