Greenfield v. Cohen

Full title: ALBERT D. GREENFIELD, APPELLANT, v. JASON J. COHEN, GERALD E. GAFFIN, AND…

Court: District Court of Appeal of Florida, Third District

Date published: Jun 7, 1983

432 So. 2d 574 (Fla. Dist. Ct. App. 1983)

Opinion

No. 82-942.

April 12, 1983. Rehearing Denied June 7, 1983.

Appeal from the Circuit Court, Dade County, Jack M. Turner, J.

S. Melvin Apotheker, Miami, for appellant.

Britton, Cohen, Kaufman, Schantz and J. Robert Olian, Miami, for appellees.

Before SCHWARTZ, C.J., and NESBITT and FERGUSON, JJ.

NESBITT, Judge.

Cohen, as trustee of C.G. G. Realty Trust, executed a lease of an office in Framingham, Massachusetts to:

George M. Osserman, Paul Garfinkle and Albert D. Greenfield, Co-partners doing business under the firm name and style of Osserman, Garfinkle Greenfield, jointly and severally, of 701 Rivergate Plaza, 444 Brickell Avenue, Miami, Florida.

After payments fell into arrears, Cohen, as trustee, instituted this action on the lease for money damages. A default was taken against Osserman and Garfinkle and the case proceeded solely as to Greenfield. At trial, the only issue was whether Greenfield was a partner of Osserman and Garfinkle. The trial court, sitting without a jury, found that a partnership existed and entered judgment accordingly. Greenfield appeals.

Because there was no evidence of any partnership agreement between Osserman, Garfinkle and Greenfield, the issue on appeal has been confined to whether Greenfield was a partner by estoppel. Section 620.635, Florida Statutes (1979), provides:

620.635 Partner by estoppel. —

(1) When a person represents himself, or consents to another representing him, to anyone as a partner in an existing partnership or with one or more persons not actual partners by words spoken or written or by conduct, he is liable to any person to whom the representation has been made who has given credit on the faith of the representation to the actual or apparent partnership, and if he has made the representation or consented to its being made in a public manner, he is liable to the person, whether the representation has or has not been made or communicated to the person giving credit by or with the knowledge of the apparent partner making the representation or consenting to its being made.

. . . .

Although the lease itself recited that Osserman, Garfinkle and Greenfield were "Co-partners," the lease was signed only by Garfinkle. However, Greenfield did sign two checks payable to Cohen's realty trust. One check recited in type that it was for "Security Deposit for Framingham Office" and the other that it was for "First months rent for Framingham office." Each was drawn on the account of Osserman, Garfinkle and Greenfield and each bore at its top the inscription "Osserman, Garfinkle and Greenfield Attorneys at Law" with the Brickell Avenue address. The checks were returned to Cohen with a copy of the lease signed by Garfinkle.

Over defense counsel's standing hearsay objection, Cohen was allowed to testify as follows:

Q. If you had been informed that this was not a partnership, would you have required three signatures?

A. Yes. I would have required individual signatures. We had prepared the lease requesting the three signatures and when I mentioned it to Mr. Garfinkle, he said I have authority to sign for the partners and that was fine.

Greenfield argues on appeal that the above testimony was inadmissible and that without it there was no evidence of Cohen's reliance on the appearance of a partnership.

An extrajudicial admission of partnership can be received into evidence only to affect the person making it, J. J. Builders Supply v. Caffin, 248 Cal.App.2d 292, 56 Cal.Rptr. 365 (1967); H-K Corporation v. Chance, 25 N.C. App. 61, 212 S.E.2d 34 (1975), unless it can be shown that the party against whom it is offered consented to or adopted the admission or otherwise ratified it. Humboldt Livestock Auction, Inc. v. B H Cattle Co., 261 Iowa 419, 155 N.W.2d 478 (1967). In the present case, the trial judge was clearly entitled to draw from the rent and security deposit checks the reasonable inference that Greenfield had consented to Garfinkle's actions, while disbelieving Greenfield's testimony that he signed the checks as a mere administrator of Garfinkle's and Osserman's business affairs. Consequently, the evidence demonstrated Greenfield's consent to a representation of partnership relied upon by Cohen, thereby satisfying the elements of Section 620.635.

For the foregoing reasons, the judgment below is affirmed.

Affirmed.

ON MOTION FOR REHEARING DENIED

The appellant, Greenfield, has moved for rehearing citing Jarrard v. Associates Discount Corp., 99 So.2d 272 (Fla. 1957) for the proposition that the trial court should not have been permitted to base its finding of a partnership by estoppel upon an inference. Although the motion merits some discussion, we adhere to our original opinion.

In Jarrard, a discount corporation sought to replevy automobiles from one Cherry, their original seller. Cherry had sold the automobiles to Bill Fade Motors issuing bills of sale in exchange for payment by checks. Bill Fade Motors then executed trust receipts to the plaintiff discount corporation in exchange for its checks. When the checks from Bill Fade Motors to Cherry were returned unpaid and Bill Fade failed to otherwise make his payments, Cherry took back the automobiles.

On the strength of the trust receipts, the discount corporation sued for replevin asserting superior title to the automobiles. Furthermore, it claimed that Cherry was estopped to assert his better title because he had issued bills of sale upon which the discount corporation relied. In this regard, the evidence showed that the discount corporation had a practice of examining indicia of title to automobiles within twenty-four hours of issuing checks in exchange for trust receipts thereon. The theory of reliance was that if the discount corporation had followed its normal procedure and had discovered a lack of title to the automobiles, it could have demanded payment for the sums due under the trust receipts and could have moved against Bill Fade Motors' assets if not paid those sums.¹ However, there was no evidence that the normal procedure had been followed with respect to the transaction in question.

1 Although it was not mentioned in the Jarrard opinion, apparently Bill Fade Motors was at the time of suit devoid of sufficient assets to satisfy the trust receipts.

The trial court accepted the reliance theory and found sufficient evidence to support an estoppel. The supreme court had no quarrel with the theory of reliance but nonetheless reversed holding that the evidence was not sufficiently certain, clear, and satisfactory to prove the essential elements of estoppel. The supreme court thus refused to indulge in the inference that because the discount corporation had a customary practice when accepting trust receipts, such practice was adhered to on the particular occasion under discussion.

The Jarrard case does not control the one before us. To infer that Greenfield consented to Garfinkle's actions, the trial court here needed only to interpret Greenfield's conduct in signing the checks for payments on the lease. It was not necessary, as it would have been in Jarrard, to infer that certain conduct had actually been carried out. Having disbelieved Greenfield's obviously biased and totally uncorroborated explanation for the checks, the trial court was left with an unambiguous expression and affirmation of partnership — checks signed by Greenfield bearing the inscription "Osserman, Garfinkle and Greenfield Attorneys at Law," drawn on an account in the same names, and made out as payments on a lease purporting to be the obligation of those people doing business as co-partners. The only reasonable conclusion was that Greenfield had acquiesced in Garfinkle's procurement of a lease for an ostensible partnership.

The motion for rehearing is, therefore, denied.