JOHN R. BROWN, Chief Judge.
In this Florida diversity case we must again send a case back for the normal process of development of the facts and the determination of the real merits of the case.
Palm Beach Investment Properties, Inc., defendant-appellee, is a real estate promoter that markets its properties by bringing prospective customers to Florida through "free vacation certificates". When the customer arrives for his "free vacation" the defendant then engages him in a strong sales campaign involving tours of the real estate. Apparently, Palm Beach now operates only in Florida, but at the time this dispute arose it operated the same type of promotion in the Las Vagas, Nevada area.
Merlite, plaintiff-appellant, acting pursuant to a written agreement between it and Palm Beach, was in charge of the promotion of the "free vacation certificates". The certificates were distributed by Merlite through merchants who used them as promotional devices. Merlite was responsible for printing of certificates, advertising and promotion of the program, and initial contacts with the prospective customers. In return it was allowed to sell the certificates to the merchants and it received a $25 commission for each sale made to a certificate holder by Palm Beach.
The dispute arose when Palm Beach notified Merlite that it would no longer honor any of the certificates that had been distributed granting "free vacations" in the Las Vagas area. It is alleged by Merlite that this action was a violation of the written agreement between
It is the position of Palm Beach, apparently adopted by the District Court, that the complaint failed to state grounds upon which relief could be granted because the alleged contract between Merlite and Palm Beach failed to specify the number of certificates Merlite was to print and distribute. The agreement only provided that Merlite should create, print and pay for the certificates "in such quantities as needed". It is Palm Beach's position that this lack of specificity in the agreement made it illusory and unenforceable. As to the tort claim it argues there was no allegation of an interference with a contractual relationship and only such an interference could be a basis for recovery. In addition, Palm Beach contends that a disclaimer of liability on the back of the certificates prevents any recovery by Merlite.
Moreover, the complaint states a claim for which some relief can be granted even if it were determined that there was a lack of mutuality of obligation. It is well established that damages may be granted to a party who has performed his portion of such an agreement. See Florida-Georgia Chemical Co. v. National Laboratories, Inc., Fla.App., 1963, 153 So.2d 752. It is clear here that Merlite has alleged that it supplied all certificates required under the agreement until the defendant gave notice that it would no longer honor the certificates.
Finally, Merlite's allegation of a tort claim is also one as to which it cannot be said at this stage that relief could not be granted under a Conley v. Gibson, supra, reading of the pleadings. Palm Beach contends that no such claim is stated because the complaint speaks in terms of interference with the contract relationship between Merlite and the certificate holders. Palm Beach also argues that there is no such contract relationship. Such a restrictive reading of the factual allegations contained in count two of the second amended complaint is not in line with the teachings of Conley. These allegations are sufficient to permit proof which would show that there has been an interference with the business relationship between Merlite and the certificate holders and Merlite and the merchants who helped distribute these certificates. It is much too early to rule out the possibility of sustaining such a claim by proof. Depending on proof, not pleadings, such an interference may well be a basis for claim for which relief may be granted. See John B. Reid and Assoc., Inc. v. Jimenez, Fla. App., 1966, 181 So.2d 575; W. Prosser, The Law of Torts 745-60 (2nd ed. 1955).
In addition, the limitation of liability (see note 3, supra) does not prevent Merlite from having stated a claim in its complaint. First, the limitation of liability speaks only to liability to a holder of an existing certificate. A tort of interference with a business relationship encompasses prospective as well as current customers and the limitation of liability has no effect upon the merchants who may have distributed these certificates. Second, the limitation of liability speaks in terms of "use" of the certificates. It clearly does not refer to complete default upon the obligation of the certificate.
Thus this case must return to the Trial Court. In sending it back we repeat as we have done before, Pred, supra, 415 F.2d at 860; Webb v. Standard Oil Co., 5 Cir., 1969, 414 F.2d 320, 324; Equity Capital Co. v. Sponder, 5 Cir., 1969, 414 F.2d 317, 319, that this case is recommitted to the supervision of the Trial Judge without the slightest
Reversed and remanded.