Anderson v. Gaither

• Decision Date: 01 May 1935
• Parties: ANDERSON v. GAITHER.
• Court: Florida Supreme Court

162 So. 877

120 Fla. 263

ANDERSON v. GAITHER.

Florida Supreme Court

May 1, 1935

Rehearing Denied Aug. 28, 1935.

En Banc.

Error to Circuit Court, Duval County; George Couper Gibbs, Judge.

Action by W. C. Gaither against H. L. Anderson, wherein Monroe C Gaither, as administratrix of the estate of W. C. Gaither deceased, was substituted as plaintiff. To review a judgment for plaintiff on directed verdict, defendant brings error.

Affirmed.

COUNSEL Crawford & May and H. L. Anderson, all of Jacksonville, for plaintiff in error.

Mabry Reaves, Carlton & White, of Tampa, and Giles J. Patterson, of Jacksonville, for defendant in error.

OPINION

PER CURIAM.

This was an action at law wherein verdict for plaintiff below was directed by the trial judge and judgment was entered in his favor for a recovery of damages in the sum of $22,991.84. A previous judgment for the defendant below was reversed. See Gaither v. Anderson, 103 Fla. 1190 135 So. 840, 139 So. 587.

Plaintiff's declaration was in two counts; the first upon an account stated, and the second upon a common count for work done and services rendered. The controversy concerned a real estate broker's commission sued for by an action brought by claimant Gaither, as plaintiff, in his lifetime, and continued after his death in the name of his administratrix. Much of the law of this case was settled by the previous opinion of this court rendered on rehearing when the case was here before. So the principal concern on the present writ of error is whether or not the trial judge was warranted in directing a verdict for defendant in error at the conclusion of all of the evidence. If he was not, the judgment must be reversed on that score alone, if on no other ground. To the end of adjudicating that inquiry, we are required to ascertain and decide from the record whether or not the evidence of payments aggregating $200,000, admittedly made to Anderson as shown by the evidence, were received by him by reason of the land sales contract of March 20, 1925, which plaintiff Gaither had procured from O. B. Stuart and associates, as purchasers, under an agreed sale of the land concerning which Gaither's broker's commission was claimed, or was received by Anderson pursuant to an alleged disconnected subsequent sale as to which Gaither had no right to claim any commission.

The principal evidence at the second trial consisted of the testimony of W. C. Gaither (at the time deceased) as recorded in the bill of exceptions preserved at the first trial; the documents introduced at the first trial, including the trust deed mentioned in the previous opinion of this court, all supplemented by letters and telegrams and the deposition of one O. B. Stuart, the alleged purchaser, as taken and used at the first trial. In addition to the documentary evidence referred to, Stuart and Anderson were adduced as witnesses and testified personally.

The evidence shows that W. C. Gaither, plaintiff's decedent, was a real estate broker living in Tampa, and that in March, 1925, H. L. Anderson, for himself and as trustee for others, employed the broker to sell certain lands lying in Hillsborough county and agreed to pay said broker 5 per cent. commission only in the event of an actual sale. Acting under such employment, Gaither obtained from O. B. Stuart and associates a written contract relating to the sale of the lands, but on the prior appeal this court held such contract to be an option only in its inception, but which was capable of ripening into a valid contract of sale entitling the broker to his commission, if and when it was fully executed. Stuart and associates made a down payment on the stipulated purchase price set forth in the contract, but the final consummation of the sale itself was had with a purchaser described as Seashore Estates, which appears to have been organized as a paper corporation to take title to the lands when conveyed.

On October 1, 1925, Anderson wrote a letter to Gaither saying, among other things (letter quoted in full in prior opinion, 103 Fla. 1190, 139 So. 587, text 588): 'I estimate that the balance I owe you will be $17,000.00.' The letter of October 1, 1925, was attached to the declaration as a bill of particulars.

On November 1, 1925, Anderson wrote to Gaither referring to 'balance due to you' and by letter dated September 29, 1926, again advised Gaither as follows:

'September 29, 1926.

'W. C. Gaither, Esq., Tampa, Fla.

'Dear Sir: Your letter 29th inst. It will be impossible for me to get any moneys before December first. I appreciate the fact that times are hard in Tampa, and with you, but they are also hard with me. I cannot collect any money, and shall have to ask you to postpone the matter until December lst, when I expect to get some settlement on the Bay Shore property matter.

_________________________________ 'Yours truly,

_________________________________ '[Signed] H. L. Anderson.'

It was the contention of Anderson that while Gaither had admittedly procured a contract from O. B. Stuart and associates for a presumptive sale of the involved lands under which contract when consummated and carried into execution, Gaither would have become entitled to the commission acknowledged to be due him by Anderson's letter to Gaither under date of October 1, 1925 (quoted in prior opinions of this court), that nevertheless Gaither's commission in the premises was never earned by him by reason of the fact that the sale of the lands to O. B. Stuart and associates was defaulted and canceled on account of the inability of O. B. Stuart and associates to pay, and that what was later consummated as a sale of...