ANNE W. FLEMING AND THOMAS F. FLEMING, III, PERSONAL REPRESENTATIVES OF THE ESTATE OF THOMAS F. FLEMING, JR., APPELLANTS,
v.
BURBACH RADIO, INC., A FLORIDA CORPORATION, APPELLEE
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Personal representatives of a deceased lender's estate sought to recover on loans made to a corporation, some evidenced by promissory notes and others made without documentation. The trial court found the undocumented loans were valid obligations but not yet due because the plaintiffs failed to prove when repayment was required, and the appellate court affirmed.
The appellants failed to meet their burden of proof on the essential element of when the oral loans were to be repaid. The trial court properly declined to create a new contract for the parties by imposing a demand-repayment term, and the loans therefore were not found to be due and owing at the time of judgment.
[1] A plaintiff bears the burden of proving all essential elements of their cause of action, including the time for repayment of an indebtedness.
[2] In the absence of a specified time for performance in a simple contract, performance must be rendered within a reasonable time.
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Join FLexlaw to unlock all legal intelligence“It is elementary that the burden of proof rests upon the plaintiff to establish by credible evidence all of the essential elements of his cause of action.”
Establishes that appellants bore the burden to prove when the loans were to be repaid
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Join FLexlaw to unlock all legal intelligenceThomas F. Fleming, Jr. made seven loans to Burbach Radio, Inc.—three represented by promissory notes and four without notes. The defendant corporation…
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HERSEY, Judge.
Thomas F. Fleming, Jr. made various loans to Burbach Radio, Inc. Three of the loans were represented by promissory notes and four additional loans were made for which no promissory notes were given. Appellants, in their capacities as personal representatives of the Estate of Thomas F. Fleming, Jr., brought this action to recover on all of the loans. The fact of indebtedness and the amount due as to each loan was admitted. After a trial without jury the court made the following finding of fact:
9. The loans not evidenced by promissory notes are a proper obligation of the corporation, but Plaintiff did not sufficiently prove when these loans were to be paid.
With reference to the loans not evidenced by promissory notes the court entered the following conclusion of law:
2. The principal amount of $32,242.50 plus interest in the amount of $2,194.62 is an obligation of the corporation and is [*DCCCIV] unpaid, but is not due and owing at this time.
Appellants urge error in that the trial court did not hold that the loans not represented by promissory notes are due and owing upon demand.
It is elementary that the burden of proof rests upon the plaintiff to establish by credible evidence all of the essential elements of his cause of action. 13 Fla.Jur., Evidence, Section 63 and cases there cited. One of the elements in the case sub judice was the time for repayment of the indebtedness.
In the case of a simple contract where no time limit is specified for performance, the party charged with performance must act within a reasonable time. Tyner v. Woodruff, 206 So. 2d 684 (Fla. 4th DCA 1968); Doolittle v. Fruehauf Corporation, 332 So. 2d 107 (Fla. 1st DCA 1976). In modification and extension of this rule in the area of negotiable instruments, Section 673.108, Florida Statutes (1977) provides that an instrument is payable upon demand if no time for payment is stated.
Both of these rules depend upon a finding that, in the former case, there is no provision of the contract specifying a time for performance and, in the latter case, the instrument is silent as to the time for performance.
The trial court concluded and our review of the record on appeal confirms not that there was no time specified for repayment of the indebtednesses, but rather that appellants had failed to sustain their burden of proof as to whether or not the oral undertakings included a promise to repay at or within a certain time. Under the circumstances, it would not have been appropriate for the trial court to make a new contract for the parties. A different result might have obtained had the appellants sought declaratory relief as to the essential element of time for performance.
Appellants having failed to demonstrate reversible error, we affirm.
AFFIRM.
ANSTEAD and LETTS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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In re Standard Jury Instructions-Contract & Bus. Cases, 116 So. 3d 284 (Fla. 2013)…vide a specific time for performance, the law [*318] implies a reasonable time for performance. Patrick v. Kirkland, 58 Fla. 768, 43 So. 969, 971 (1907); De Cespedes v. Bolanos, 711 So. 2d 216, 218 (Fla. 3d DCA 1998); Fleming v. Burbach Radio, Inc., 377 So. 2d 723, 724 (Fla. 4th DCA 1980). 2. The decision of what constitutes a reasonable time for performance is ordinarily a question of fact for the jury or fact-finder. L.P. Sims v. Am. Hardware Mut. Ins. Co., 429 So. 2d 21, 22 (Fla. 2d DCA 1982). 3. The det…
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Anderson v. Mosher, 758 So. 2d 1177 (Fla. 4th DCA 2000)…n instrument. § 673.104(2)(d), Fla. Stat. This court has held that the time for performance under the UCC for negotiable instruments is not applicable to an oral contract which does not specify a time for performance. Fleming v. Burbach Radio, Inc., 377 So. 2d 723 (Fla. 4th DCA 1979). We adhere to DeSouza but certify direct conflict with Mason. Reversed. FARMER and STEVENSON, JJ., concur.…
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Mosher v. Anderson, 817 So. 2d 812 (Fla. 2002)…n instrument. § 673.104(2)(d), Fla. Stat. This court has held that the time for performance under the UCC for negotiable instruments is not applicable to an oral contract which does not specify a time for performance. Fleming v. Burbach Radio, Inc., 377 So. 2d 723 (Fla. 4th DCA 1979). Anderson, 758 So. 2d at 1178. Therefore, although the majority contends that there is “no valid basis” to distinguish between written payable-on-demand loan agreements and oral payable-on-demand agreements, see majority op. at…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Doolittle v. Fruehauf Corp., 332 So. 2d 107 (Fla. 1st DCA 1976)
- Edgar D. (Jack) Tyner & the Travelers Indem. Co. v. Woodruff, 206 So. 2d 684 (Fla. 4th DCA 1968)