KING PARTITIONS & DRYWALL, INC., A FLORIDA CORPORATION, APPELLANT,
v.
DONNER ENTERPRISES, INC., A FLORIDA CORPORATION, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
King Partitions sued Donner Enterprises for payment for extra drywall work performed at Donner's request. The trial court dismissed King's complaint, relying on the parol evidence rule, but the appellate court reversed, holding that evidence of a subsequent oral modification to the written contract permitting extra work without written authorization is admissible and does not violate the parol evidence rule.
Evidence of a subsequent oral agreement between the parties to perform and pay for extra work, and action in reliance on that agreement, is admissible and does not violate the parol evidence rule. Such evidence creates a new contractual undertaking separate from the original written contract and is therefore admissible to prove modification of the contract's terms, even when the contract contains a clause requiring written authorization for extras.
[1] A written contract may be modified by a subsequent oral agreement if the oral agreement has been accepted and acted upon by the parties in a manner that would result in f…
[2] An oral modification of a written contract is permissible even if the contract contains a provision prohibiting alterations except in writing.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“[a] written contract ... may be altered or modified by an oral agreement if the latter has been accepted and acted upon by the parties in such manner as would work a fraud on either party to refuse to enforce it”
Establishes the foundational rule that oral modifications of written contracts are permissible under Florida law when accepted and acted upon by the parties.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKing Partitions contracted with Donner Enterprises to furnish drywall work and materials on a condominium project. King encountered faulty work by oth…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Oral Modification Of Contract cases and more on FLexlaw
DOWNEY, Judge.
Appellant, King Partitions & Drywall, Inc., sued appellee, Donner Enterprises, Inc., in three counts to recover for work done at the request of Donner on certain property in Palm Beach County. From an involuntary dismissal and judgment thereon King has perfected this appeal.
King contracted with Donner to furnish the drywall work and material on a condominium. When Donner refused to pay King for extra work performed, King sued Donner for breach of contract, quantum meruit, and for work, labor and materials performed and furnished.
At trial King attempted to prove that, in order for it to do the work contracted for, it was necessary for it to do extra work due to the faulty work of other contractors. Donner objected to any evidence of extras that were not authorized by written work orders or expressly required by the written contract between the parties. Although the trial judge believed evidence of such extra work should be admissible, he felt constrained by the case of Monde Investments No. 2, Inc. v. R.D. Taylor-Made Enterprises, Inc., 344 So. 2d 871 (Fla. 4th DCA 1977), to find that such evidence was inadmissible because of the parol evidence rule. Accordingly, he allowed King to make a proffer of its evidence but dismissed the complaint and entered judgment for Donner. We hold the trial judge’s intuitive reaction was correct but his reading of Monde led him into error. Simply put, King proposed to prove that, when it reported its inability to proceed with its work due to the faulty work of others, Donner agreed that King should perform the extra work needed to enable it to proceed and advised King that no written work orders would be necessary. In other words, Donner agreed to pay the reasonable value of the additional work without written authorization as required by the main contract. If King could prove the proffer it would clearly be entitled to recover because the rule is well established in Florida that
[a] written contract ... may be altered or modified by an oral agreement if the latter has been accepted and acted upon by the parties in such manner as would work a fraud on either party to refuse to enforce it_ An oral modification under these circumstances is permissible even though there was in the written contract a provision prohibiting its alteration except in writing.
Professional Insurance Corporation v. Cahill, 90 So. 2d 916, 918 (Fla.1956). Accord Pan American Engineering Company v. Poncho’s Construction Company, 387 So. 2d 1052 (Fla. 5th DCA 1980); Wiener v. Wiener, 343 So. 2d 1319 (Fla. 3d DCA 1977); Doral Country Club, Inc. v. Curcie Brothers, Inc., 174 So. 2d 749 (Fla. 3d DCA 1965).
The trial court’s reliance upon Monde was misplaced, we believe, because Monde held the plaintiff’s attempt to prove its entitlement to compensation for extras required it to change the terms of the written contract by the adduction of parol evidence. All the authorities concede that the terms of a written contract cannot be changed by parol evidence. However, proving a subsequent oral agreement between the parties to perform the work and pay for it, and action in reliance thereon, creates a new contractual undertaking. Evidence thereof does not violate the rule that parol will not be admitted to contradict the terms of a written contract. Furthermore, as pointed out in many of the cases cited, even the prohibition of payment for extra work without a written work order does not preclude the parties from entering into a further oral agreement modifying those prohibitory provisions.
Accordingly, the judgment appealed from is reversed and the cause is remanded for a new trial.
REVERSED AND REMANDED.
HERSEY and BARKETT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
-
Wilson v. Woodward, 602 So. 2d 547 (Fla. 2d DCA 1992)…operties, Inc. v. Univest Crossland Trace, Ltd., 516 So. 2d 320 (Fla. 2d DCA1987); see also The Race, Inc. v. Lake & River Recreational Properties, Inc., 573 So. 2d 409 (Fla. 1st DCA1991); King Partitions & Drywall, Inc. v. Donner Enterprises, Inc., 464 So. 2d 715 (Fla. 4th DCA1985). In addition to modifying a contract by oral agreement under certain circumstances, a contract can also be modified by conduct which would render it a fraud upon one party for the other to refuse to perform the alleged oral [*550]…
-
F.M.W. Props., Inc. v. Peoples First Fin. Sav. & Loan Ass'n, 606 So. 2d 372 (Fla. 1st DCA 1992)…l testimony must be sufficiently specific to establish a new meeting of the minds between the contracting parties which changed the terms of a written contract subsequent to its execution); King Partitions & Dry wall Inc. v. Donner Enterprises Inc., 464 So. 2d 715 (Fla. 4th DCA 1985) (oral agreement which is accepted and acted upon by the parties in reliance thereon may create a new contractual undertaking where refusal to enforce subsequent oral agreement would work a fraud on either party). In light of thes…
-
Fed. Deposit Ins. Corp. for Sunrise Sav. & Loan Ass'n v. Hemmerle, 592 So. 2d 1110 (Fla. 4th DCA 1991)…op the property, etc., beyond the loan payment deadline, they were already obligated to do those things under the original contract and failed to prove a new contractual undertaking. See King Partitions and Drywall, Inc. v. Donner Enterprises, Inc., 464 So. 2d 715, 716 (Fla. 4th DCA 1985). Any such agreement lacked consideration. New consideration must support a subsequent modification. See In re Estate of Johnson,. 566 So. 2d 1345, 1347 (Fla. 4th DCA 1990). Therefore, we hold that the subsequent agreement ex…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- PAN Am. Eng'g Co., Inc. v. Poncho's Constr. Co., 387 So. 2d 1052 (Fla. 5th DCA 1980)
- Seymore v. State, 90 So. 2d 916 (Fla. 1956)
- Doral Country Club, Inc. v. Curcie Bros., Inc., 174 So. 2d 749 (Fla. 3d DCA 1965)
- Prof'l Ins. Corp. v. Cahill, 90 So. 2d 916 (Fla. 1956)
- Wiener v. Seymour James Wiener, 343 So. 2d 1319 (Fla. 3d DCA 1977)
- Monde Invs. NO. 2, Inc. v. R. D. Taylor-Made Enters., Inc., 344 So. 2d 871 (Fla. 4th DCA 1977)