Opinion
No. 68-460.
November 26, 1968.
Appeal from the Circuit Court for Dade County, Harold B. Spaet, J.
Copeland, Therrel, Baisden Peterson and Meek Robinette, Miami Beach, for appellants.
Starr W. Horton, Harold Kassewitz, Miami, for appellee.
Before PEARSON, BARKDULL and SWANN, JJ.
Appellants, defendants in the trial court, seek review of an adverse final judgment rendered by the trial court in a non-jury action.
The appellee-plaintiff sued for monies due it from the late William B. MacDonald, Jr. The defense was that the sums, admitted as correct, were not recoverable because of an executed general release. The trial judge found that the particular indebtedness involved was not covered by the general release, upon the authority of Ormsby v. Ginolfi, Fla.App. 1958, 107 So.2d 272; Graham v. Taller Cooper, Inc., E.D.N.Y. 1950, 91 F. Supp. 419; Simon v. Simon, 274 App. Div. 447, 84 N.Y.S.2d 307; 76 C.J.S. Release § 52; Anno. 171 A.L.R. 185.
It is generally a question of fact wherein parol evidence is accepted, notwithstanding the written agreement to determine if an item which is not mentioned in a release was to be included therein. Bruce Construction Corporation v. Federal Realty Corporation, 104 Fla. 93, 139 So. 209; Ormsby v. Ginolfi, supra; Florida State Turnpike Authority v. Industrial Construction Company, Fla.App. 1961, 133 So.2d 115; 28 Fla.Jur., Release, §§ 17, 18.
We find substantial, competent evidence in the record to support the trial judge's finding. Therefore, the same and the final judgment here under review should not be disturbed on appeal. Dade County, By and Through Bd. of County Com'rs. v. Pepper, Fla.App. 1964, 168 So.2d 198; Leeb v. Read, Fla.App. 1966, 190 So.2d 830; Gaisford v. Frostman, Fla.App. 1967, 202 So.2d 790; Southeast Foods, Inc. v. Penguin Frozen Foods, Fla.App. 1967, 203 So.2d 39.
Affirmed.
The option agreement and the general release involved herein were executed on December 24, 1965. They specifically released William B. MacDonald, Jr. from any obligations which he had to Tropical Park, Inc. as of that date, except for any obligations imposed upon him by virtue of the option agreement. The obligation, which resulted in the final judgment herein, was not imposed upon him by the option agreement.
I do not think parol evidence should have been admitted to vary the terms of the general release. See 13 Fla.Jur. Evidence § 383.
The general release of December 24, 1965, would not apply to the One Thousand Dollars ($1,000) paid to MacDonald by Tropical on January 1, 1966. In my opinion a judgment for Tropical Park, Inc. against the appellees for One Thousand Dollars ($1,000) should have been entered.
I respectfully dissent.