Knowles v. CIT Corporation , 1977 Fla. App. LEXIS 16069 ( 1977 )

346 So. 2d 1042 (1977)

Clyde KNOWLES, Appellant,
v.
C.I.T. CORPORATION, Appellee.

No. DD-138.

District Court of Appeal of Florida, First District.

May 25, 1977. Rehearing Denied June 30, 1977.

John T. Trekel and R. Craig Hemphill, Jacksonville, for appellant.

Carlton L. Welch, Terrance E. Schmidt, Jacksonville, for appellee.

PER CURIAM.

The judgment here appealed arises from a claim by appellee Butler against appellant Knowles based upon an alleged agreement or representation involving the transfer, repair and use of a crane. From the allegations of the pleadings it is impossible to determine whether the claim was intended to be based upon an alleged breach of an alleged oral contract or on the theory of fraud. However, it makes no difference in this particular case since the evidence supports neither. A reading of the record though reflects that Butler's attorney specifically disavowed, while arguing against a motion for directed verdict, any claim for fraud; thereby leaving only an alleged claim for breach of contract. It is elementary that in order to recover on a claim for breach of contract the burden is upon the claimant to prove by a preponderance of the evidence the existence of a contract, a breach thereof and damages flowing from the breach. Sub judice, appellee proved neither.

Reversed and remanded with directions that a judgment be entered in favor of Knowles as to Butler's claim allegedly based upon the breach of an alleged oral contract.

IT IS SO ORDERED.

BOYER, C.J., and RAWLS and McCORD, JJ., concur.