Wackenhut Corp. v. Conner
420 So. 2d 383
Fla. Dist. Ct. App.
1982
Check Treatment
PER CURIAM.

In order to maintain an action for breach of an oral contract a plaintiff must first establish performance on its part of the contractual obligations assumed. Babe, Inc. v. Baby’s Formula Service, Inc., 165 So.2d 795 (Fla. 3d DCA 1964).

Where the defendant continually complained that the requested services were not being performed, the plaintiff may not recover upon a theory of account stated, Merrill-Stevens Dry Rock Co. v. Corniche Express, 400 So.2d 1286 (Fla. 3d DCA 1981), and cases collected therein.

The trial judge’s finding that appellant failed to make a case on either theory is supported by the record and will not be disturbed on appeal. Basic Food Industries, Inc. v. Wackenhut Corp., 323 So.2d 1 (Fla. 3d DCA 1975).

Affirmed.