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

District Court of Appeal of Florida

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

150 So. 2d 268

CourtDistrict Court of Appeal of Florida

DecidedFebruary 26, 1963

DocketNo. 62-465

StatusPublished

Cited by5 cases

This text of 150 So. 2d 268 (American Ladder & Scaffold Co. v. Miami Ventilated Awning Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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American Ladder & Scaffold Co. v. Miami Ventilated Awning Co., 150 So. 2d 268 (Fla. Ct. App. 1963).

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Opinion

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 appel-lee, 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.

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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 appel-lee, 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.

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