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 1984-06

Douglas v. Braman Porsche Audi, Inc. , 451 So. 2d 1038 ( 1984 )


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  • 451 So. 2d 1038 (1984)

    Cecile DOUGLAS, Appellant,
    v.
    BRAMAN PORSCHE AUDI, INC., Appellee.

    No. 83-2585.

    District Court of Appeal of Florida, Third District.

    June 26, 1984.

    *1039 Gilbride, Heller & Brown and William S. Weisman, Miami, for appellant.

    Bercuson, Cahan, Weksler & Lasky and Steven D. Kaufman and David Bercuson, Coconut Grove, for appellee.

    Before BARKDULL, BASKIN and FERGUSON, JJ.

    PER CURIAM.

    This appeal is from a judgment for the defendant entered on a directed verdict.

    Plaintiff entered into a contract with defendant for the purchase of an automobile. When plaintiff paid a $3500 deposit she was not informed by the salesperson that the automobile was already under contract to another customer. We need not reach the question whether plaintiff sufficiently pleaded and proved the torts of fraud in the inducement and negligence in light of the concession, which is supported by the proof, that on those two counts no damage was suffered.[1]

    The claim for conversion, the only count which might have included an element of damage, fails as a matter of law and fact. There was never a demand for return of the deposit and in fact the deposit was mailed to plaintiff's attorney before the complaint was amended to include a count for conversion. The deposit was refused by plaintiff's attorney and returned to defendant. On the point of law, a mere obligation to pay money, generally, may not be enforced by a conversion action. Stated otherwise, an action in tort is inappropriate where the claim is based on a breach of contract. Belford Trucking Company v. Zagar, 243 So. 2d 646, 648 (Fla. 4th DCA 1970).[2]

    The final judgment on a directed verdict is AFFIRMED.

    NOTES

    [1] Approximately five days after plaintiff was informed that the automobile was no longer available from Braman, she made a purchase of a similar automobile from another dealer. There is no contention that the subsequent purchase was costlier.

    [2] The complaint did not state a cause of action based on breach of contract. Plaintiff is nonetheless entitled to a return of her deposit because the seller failed to perform.