Opinion
No. 69-536.
May 6, 1970.
Appeal from the Court of Record, Broward County, Russell E. Seay, Jr., J.
John W. Fleming and Thomas B. Mimms, Jr., of Fleming, O'Bryan Fleming, Fort Lauderdale, for appellant.
Harry G. Carratt, of Morgan, Carratt O'Connor, Fort Lauderdale, for appellee.
This is an appeal from a final judgment entered against the appellant-defendant by the trial judge as a result of a summary judgment granted on one count filed by the appellee-plaintiff in a three count complaint, and a trial on the merits of a counterclaim filed by the appellant.
The findings of the trial judge on the counterclaim were predicated upon evidentiary matters that are not included in the record on appeal. This court will therefore assume that necessary evidence was presented to sustain the court's findings. Buckalew v. Buckalew, Fla.App. 1959, 115 So.2d 564; Cohen v. Cohen, Fla. 1954, 70 So.2d 362. That part of the judgment dismissing the counterclaim is affirmed.
The summary judgment was rendered on an account stated count. The defendant filed an affidavit denying the debt and denying any basis for it, but did not deny that he received bills from the plaintiff. There can be no liability on an account stated if there has been no mutual agreement, and the mere presentation of a claim and its retention without objection cannot of itself create a liability. Braun v. Noel, Fla.App. 1966, 188 So.2d 564.
The record clearly discloses issues of fact on the plaintiff's complaint. The trial judge was in error in entering final judgment predicated upon a summary judgment.
The judgment is vacated with directions to proceed to trial on the issues of the complaint and the answer thereto.
Affirmed, in part; reversed, in part.
CROSS, C.J., and WALDEN, J., concur.