Maszewski v. PiskadloMaszewski v. Piskadlo
Appellant, an 83-year-old married woman, seeks enforcement of a contract under which she claims a right to reside in a house in which appellee, a 79-year-old widower, owns a life estate. The trial judge entered a final judgment on the pleadings in favor of defendant-appellee and this appeal ensued. We affirm.
The question herein is the enforceability of the alleged contract. The trial judge determined that it was unenforceable for three reasons. We need only consider one, however, that relating to the lack of mutuality of obligation.
The facts are these. In 1966 the appellant was “enticed,” it is said, by appellee and induced to leave her apartment and move in with him in a house which, at that time, he owned in fee simple. On April 19, 1967 appellee deeded fee simple title to appellant reserving a life estate. That deed was recorded on the same day. The parties continued living together until some time in 1970 when the relationship between them became strained. Sometime during that year appellant allegedly attempted to leave the premises but in a spirit of apparent reconciliation appellee requested that she remain. Illustrative of this reconciliation the “agreement” sued upon herein was entered into on the 4th day of June, 1970. The parties thereafter continued living as they had been until 1973 when appellee changed the locks and dispossessed appellant. This action followed.
“It is mutually agreed by and between the parties hereto that during the remainder of their lifetimes, they shall live together in harmony in the above described residential premises. Neither shall have the right to dispossess the other from these premises.
”However, should either desire to separate, there shall be no inhibition against one of the parties on his or her own volition from separating from the other and leaving said premises.” (Italics ours.)
At first blush it might appear that this exchange of promises not to dispossess one another is sufficient consideration; but it‘s illusory. To begin with, appellee gave up the right to dispossess appellant but appellant gave up nothing since, appellee being a life tenant, appellant couldn‘t have dispossessed him in the first place. There was nothing, therefore, to support his promise.
Additionally, while appellant alleges in her complaint that in consideration for that promise on appellee‘s part she forebore leaving the premises when she had a right to leave, she is estopped from establishing that fact under the parol evidence rule because she expressly reserved the right to leave at anytime under the terms of the written agreement she‘s suing on.1 The sum total of the agreement, then, is that he can‘t dispossess her but she is free to go at anytime. He has nothing to enforce.
We are of the opinion, therefore, and so hold, that the contract sued on is void for lack of mutuality of obligation and thus unenforceable. Accordingly, the judgment appealed from should be, and the same is hereby, affirmed.
HOBSON, J., concurs.
SCHWARTZ, ALAN R., Associate Judge, dissents with opinion.
SCHWARTZ, ALAN R., Associate Judge (dissenting).
The plaintiff, an 83-year-old married lady, appeals from a final judgment on the pleadings rendered against her in an action for the alleged breach of a 1970 written contract between her and the defendant, a 79-year-old widower, under which he agreed to permit her to live in a house in which he retained a life estate, after his having deeded the fee to her.1
The complaint affirmatively alleged that the consideration for the contract consisted of the plaintiff‘s agreement, at the defendant‘s request, not to leave the home in which they had been residing together since 1966. The contract provided that the parties were to live in harmony together there for the remainder of their joint life-times, and that neither could dispossess the other. However, it was alleged that Mr. Piskadlo had breached the agreement in 1973 by evicting Mrs. Maszewski from the premises.
On a motion for judgment on the pleadings under
As has been pointed out, the complaint (perhaps unnecessarily, since lack of consideration is an affirmative defense which should be raised in the answer under
I cannot agree with the Court‘s conclusion that the parol evidence rule precludes the plaintiff from demonstrating that this consideration existed. Mrs. Maszewski‘s forebearance, which allegedly preceded and induced the agreement, is not at all inconsistent with or contrary to its express terms. Since this is true, as the Court said in Asphalt Paving, Inc. v. Ulery, Fla.App. 1st 1963, 149 So.2d 370, 377:
“Parol evidence of such a transaction is admissible, even when it shows a different consideration than that recited in an instrument. See 1 Restatement of Contracts, Sec. 82, page 93.”
Accord: Mallard v. Ewing, 121 Fla. 654, 164 So. 674 (1936); Jackson v. Parker, 153 Fla. 622, 15 So.2d 451 (1943); Paradise Beach Homes, Inc. v. South Atlantic Lumber Co., Fla.App.1st 1960, 118 So.2d 825, 827; Wise v. Quina, Fla.App.1st 1965, 174 So.2d 590, 596-597.
Nor does it affirmatively appear that the contract is an unlawful one. It is well-established that courts will not, unless the contrary clearly appears, presume that apparently proper agreements are either entered into for illegal or immoral purposes or are to be performed in that manner. E.g. Diversified Enterprises, Inc. v. West, Fla.App.2d 1962, 141 So.2d 27; Cunningham v. Weatherford, 159 Fla. 864, 32 So.2d 913 (1947); Inter-Continental Promotions, Inc. v. MacDonald, 5 Cir.1966, 367 F.2d 293, 301-303. Without in any way deprecating the hopeful and encouraging results of recent investigations into “sex and the senior citizen,” it certainly cannot be said the contract between these parties necessarily, as the answer claims, requires a violation of
The appellee also argues that the contract is unenforceable as one in derogation of the marriage between Mrs. Maszewski and her husband. It is contended that her going to live permanently with Mr. Piskadlo would inevitably result in her marriage with Mr. Maszewski being or becoming “irretrievably broken.”
Finally, the plaintiff‘s failure to “reply” to the defendant‘s self-styled “affirmative defenses” makes no difference. The “defenses” were not sought to be “avoided” but were rather “denied” by the plaintiff — in the case of lack of consideration, by specific anticipatory allegations in the complaint. Thus the terms of the archaically phrased rule in question,