Huskey Realty v. Dimension Four Intern. Ltd., 48913
| Decision Date | 16 June 1977 |
| Docket Number | No. 48913,48913 |
| Citation | 347 So.2d 432 |
| Parties | HUSKEY REALTY, Petitioner, v. DIMENSION FOUR INTERNATIONAL LTD., Respondent. |
| Court | Florida Supreme Court |
Writ of Certiorari to the District Court of Appeal, Fourth District.
Carl D. Motes, of Maguire, Voorhis & Wells, Orlando, for petitioner.
Mitchell L. Perlstein of Brown, Malman & Salmon, Miami, for respondent.
The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. The Writ was issued; but upon further consideration of the matter we have determined that the Court is without jurisdiction. Therefore, the Writ is hereby discharged and the Petition for Writ of Certiorari is dismissed.
It is so ordered.
I dissent from discharge of the writ because, in my opinion, the decision of the district court in this cause, reported at 325 So.2d 34, conflicts with Cohen v. Mohawk, Inc., 137 So.2d 222 (Fla.1962).
Cheetham Realty was enlisted to help find a purchaser. The listing agreement was again amended to provide that Cheetham would receive 60% of the brokerage commission and petitioner 40% and that Cheetham was to receive 6% of the cash paid at closing and 6% of the mortgage payments as made. The second amendment further provided that petitioner was to receive 4% of the mortgage payments and
". . . Because Huskey (petitioner) is not receiving four (4%) percent of the cash at closing, that deferred part of its commission shall be paid out of the mortgage payments made by (buyer) on its mortgage in a ratio based upon the payment made (annual or prepayment) to the original principal balance of the mortgage times the commission due Huskey at closing but not received by Huskey, with interest at seven (7%) percent per annum on the unpaid balance." 2 (emphasis supplied.)
Closing on the property was held and respondent received a down payment of $450,000. The buyer defaulted on the mortgages and respondent refused to pay petitioner any part of the brokerage commission. Petitioner brought suit against respondent claiming it was entitled to 4% of the down payment as part of its commission. The trial court regarded the second amendment as ambiguous as to whether the buyer's payment of the mortgage was to be a condition precedent to Huskey's receipt of that portion of its commission it would have received as the closing. Accordingly, it admitted parol evidence to determine the intent of the parties. The court decided that receipt of the commission owed Huskey at the time the down payment was made was not conditioned on payment of the mortgage. Accordingly petitioner was awarded judgment of $19,952.70, plus costs of the nonjury trial.
The judgment was appealed by respondent to the district court where it was reversed on the court's decision that it was error to admit parol evidence, since the second amendment unambiguously conditioned receipt of the commission originally due at the closing, on payment of the mortgage. While the district court correctly espouses the rule of law that parol evidence may not be admitted to vary the meaning of contractual terms which are clear, the court has misapplied the...
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