Opinion
No. 74-44.
May 31, 1974.
Appeal from the Circuit Court, Palm Beach County, Culver Smith, J.
George W. Wright, Jr., and Fred N. Kellner of Mershon, Sawyer, Johnston, Dunwody Cole, Miami, for appellant.
Larry Klein of Cone, Wagner, Nugent, Johnson McKeown, West Palm Beach, for appellee.
We reverse the trial court order denying the defendant's motion to dismiss the complaint. The action was for recision of a contract because of mistake. As plaintiff-appellee concedes, the complaint was defective for failure to allege the mistake with particularity. F.R.C.P. 1.120(b), 30 F.S.A.; Curtis v. Briscoe, 129 So.2d 450 (2d D.C.A. Fla. 1961) and Van Meter v. Bank of Clearwater, 276 So.2d 241 (2d D.C.A. Fla. 1973).
However, plaintiff urges that the complaint can be sustained upon some theory of a breach of oral contract. It may or may not have such cause of action. However, even under the most liberal construction of the procedural law of pleading, we are unable to glean a cause such as this within the corners of the present complaint. Orderly procedure and fairness to the defendant in being placed in a position so it can frame its defenses require that plaintiff be required to re-plead.
We reverse with instructions that plaintiff's complaint be dismissed, but with leave to amend.
Reversed and remanded.
WALDEN and MAGER, JJ., and MOORE, JOHN H., II, Associate Judge, concur.