American Ladder & Scaffold Co. v. Miami Ventilated Awning Co.

Full title: AMERICAN LADDER SCAFFOLD COMPANY, INC., A FLORIDA CORPORATION, APPELLANT…

Court: District Court of Appeal of Florida, Third District

Date published: Feb 26, 1963

150 So. 2d 268 (Fla. Dist. Ct. App. 1963)

Opinion

No. 62-465.

February 26, 1963.

Appeal from the Circuit Court, Dade County, Ralph O. Cullen, J.

Carey, Goodman, Terry, Dwyer Austin and Joseph A. McGowan, Miami, for appellant.

Robert H. Givens, Jr., Miami, for appellee.

Before PEARSON, TILLMAN, C.J., and CARROLL and BARKDULL, JJ.

BARKDULL, Judge.

Appellant seeks review of an order and final judgment of the trial court dismissing its original complaint, without leave to amend, seeking the relief against the appellee, The Miami Ventilated Awning Company, Inc., upon a written instrument providing for the rental of certain equipment belonging to the appellant to Miami Ventilated Awning, and providing in said agreement for certain indemnification of the appellant by Miami Ventilated Awning.

The complaint failed to allege that Miami Ventilated Awning and the appellee, The Miami Ventilated Awning Company, Inc., were one and the same. No error is demonstrated in the trial court's dismissal of the original complaint for failure to state a cause of action against the appellee. But, we hold it was error to deny the appellant the right to amend its complaint in an effort to allege that Miami Ventilated Awning and the appellee were, in fact, one and the same. This court is committed to the doctrine that leave to amend should be freely given. See: Wilensky v. Perell, Fla. 1954, 72 So.2d 278; Richards v. West, Fla.App. 1959, 110 So.2d 698; Rule 1.15, Florida Rules of Civil Procedure, 30 F.S.A. Counsel for the appellee urges that the effect of permitting an amendment would be to violate the Statute of Frauds in that, in fact, any amendment would change the agreement. However, it is apparent that any such proposed amendment would not be an alteration of the written agreement but, in fact, would only be an amendment to further identify the actual party to the agreement. See: Sweet v. Ranger Realty Co., 108 Fla. 249, 146 So. 199; Laws v. Ranger Realty Co., 110 Fla. 113, 148 So. 583; § 608.48, Fla. Stat. F.S.A., 13 Am.Jur., Corporations, § 133; 7 Fla.Jur., Corporations, § 53; Fletcher Cyclopedia Corporations, Vol. 6, § 2443 (perm. ed. rev. repl. 1950).

Therefore, the order and final judgment here under review is reversed insofar as it denied the appellant leave to file an amended complaint, with directions to permit an amendment within a day certain.

Affirmed in part; reversed in part, with directions.