John W. Kearns, North Miami, Fla., Isaac Franklin, Miami Beach, Fla., Leon Klein, pro se, Robert Moraff, Totowa, N. J., for plaintiff-appellant.

William M. Hoeveler, Miami, Fla., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before WISDOM* and MORGAN, Circuit Judges, and LYNNE, District Judge.

In his complaint, filed January 9, 1974, plaintiff (appellant), Leon Klein, claimed of defendants, Robert R. Frank, Peter Strelkow and Richard B. Marx, individually and doing business as Frank, Strelkow & Marx, a partnership, damages in the amount of $1,300,000.00 for breach by defendants of a contract to sell for plaintiff 65,000 shares of the common stock of Fallon Smith Corporation and to remit to him the proceeds of sale. After plaintiff, in this action tried by the court without a jury, had completed the presentation of his evidence, the Court granted the motion filed in behalf of the defendants, Frank and Strelkow, for an involuntary dismissal pursuant to the provisions of Rule 41(b), FRCP.1 From such judgment this appeal was prosecuted. We affirm.

The factual picture of underlying transactions in this bizarre case is necessarily fuzzy because of the abbreviated proceedings in the trial court. Viewed most favorably to plaintiff the evidence tended to show that one Gerald Devins, plaintiff's good friend and neighbor, was the owner of a substantial block of the common stock of the Fallon Smith Corporation,2 a Colorado corporation, whose name was later changed to Imperial Investments, Inc. In March, 1969, plaintiff loaned Devins the sum of $7,500 in return for which Devins gave plaintiff 65,000 shares of such stock.

The stock at the time of the gift was not in the actual possession of Devins but was being held in Atlanta, Georgia. Subsequently, it came into the possession of defendant, Robert R. Frank, the attorney for Devins and Fallon Smith, in Miami, Florida.3 In May, 1969, plaintiff telephoned Frank from Long Island, New York, his home, and demanded his stock or the proceeds thereof and was assured that everything was being taken care of.

Prior to June 11, 1969, Frank signed and forwarded a letter to plaintiff, which had been irretrievably lost in a move from one apartment to another.4 By letter of June 11, 1969, Frank transmitted 25,000 shares of Fallon Smith stock to William Weiss, Esq., of New York, reproduced in haec verba in the margin.5 From August to December, 1969, on several occasions plaintiff communicated with defendant Frank to inquire about his stock or its proceeds and each time was assured that it was being taken care of. On November 1, 1969, by handwritten note6 plaintiff instructed Frank to "turn over to Imperial Investment Corp. $13,500 on my behalf as a lone (sic) to them." Finally, in December, 1969, plaintiff went to Frank's home in Miami to demand an accounting for his stock or its proceeds. When Frank requested a power of attorney for the stock plaintiff became angry and "walked out of his house in a huff." Plaintiff had no further communication with Frank prior to the filing of the complaint herein.

In granting defendants' motion for an involuntary dismissal at the conclusion of the plaintiff's case the Court held that this action was barred by the applicable Florida statute of limitations.7 In this diversity action the Court was clearly correct in looking to the forum's choice of law rules8 and thus to its rules regarding the applicable statute of limitations;9 the trial court did not err in applying the Florida Statute in the factual context of this case.10 The lower court's determination that plaintiff's cause of action accrued in December, 1969, and that the statute of limitations began to run at that time is affirmed.11

Plaintiff insisted that the letter set forth in Note 5, supra, is a written contract, of which he is a third-party beneficiary, and upon which this action was founded; thus, he contended, this action was timely commenced within the five-year statute of limitations.12 The short answer to this contention is that such letter obviously does not contain a contract to do anything for the nonperformance of which the action was brought. The court below was eminently right in concluding that since resort to oral testimony was compelled to make complete the showing of any legal liability incurred by the defendant arising out of such letter, the three-year statute of limitations was applicable.13

At trial plaintiff also relied upon the letter from Frank, dated prior to June 11, 1969, referred to hereinabove, as evidence of "a contract, obligation or liability founded upon an instrument of writing" to bring his action within the five-year statute of limitations.

On direct examination, after testifying that the original had been lost, the Court sustained objections to questions designed to elicit his testimony as to the contents of such letter "because the letter would be the best evidence."14 On the following day, after the examination of plaintiff had been completed, the trial judge properly reversed his ruling.15 The lower court prudently relied upon the generally accepted rule that if the party relying upon the writing can prove that a writing existed and has been lost or destroyed, he is relieved of the burden of producing the original and can present secondary evidence of its contents. See McCormick on Evidence, §§ 229-240 (2d ed. 1972), and Rule 1004, Federal Rules of Evidence. Thereafter, plaintiff was not recalled and there was no proffer of his testimony with respect to the contents of the lost letter.16

Had the lower court made the findings required by Rule 41(b), FRCP, a painstaking review of the record on appeal might have been obviated. The record contains no evidence of any contract, obligation or liability founded upon an instrument in writing within the ambit of the five-year statute of limitations. Thus the colloquy between court and counsel in which the Court expressed the opinion that even though secondary evidence might establish the existence and contents of a lost written contract the three-year statute of limitations would nevertheless apply is irrelevant to this appeal. That may or may not be the law of Florida. We neither express nor imply a gratuitous opinion.

AFFIRMED.