Batchelder v. Prestman

• Decision Date: 11 December 1931
• Parties: BATCHELDER v. PRESTMAN.
• Court: Florida Supreme Court

138 So. 473

103 Fla. 852

BATCHELDER v. PRESTMAN.

Florida Supreme Court

December 11, 1931

Commissioners' Decision.

Error to Circuit Court, Pinellas County; O. L. Dayton, Judge.

Action by George Prestman against F. L. Batchelder. Judgment for the plaintiff, and the defendant brings error.

Reversed with directions.

COUNSEL Cook, Blanchard & Hoffman, of St. Petersburg for plaintiff in error.

Booth &amp Dickinson, of St. Petersburg, for defendant in error.

OPINION

DAVIS C.

The plaintiff, who is defendant in error here, declared upon the common count for work done and materials furnished, the three money counts, and also upon a special count for a commission for 'finding a purchaser' for a ninety-nine year lease upon certain property therein described, by virtue of an employment of plaintiff 'together with Florida Investment Service, Inc., and Harry G. Kingsland.' The defendant (plaintiff in error here) pleaded the general issue to the commission counts, and, in pleading to the special count, he denied that he employed the plaintiff to find a purchaser for the property described in the declaration. He further alleged, in substance, that he did not own a ninety-nine year lease upon such property; that he employed the plaintiff and some associates to find some one ready able, and willing to take from defendant a ninety-nine year lease upon the property, to which he, the defendant, had a fee simple title; that a lease was made and delivered to the party procured by the plaintiff, who was a stranger to defendant; and an initial payment of $10,000 on the first year's rent of $27,000, was made to defendant, and as a part of the transaction, and on the same day, plaintiff and his associates signed and delivered to defendant, a writing containing the following clause: 'It is also understood, that this commission is to be paid in proportion as you receive your first year's rent'; that plaintiff's total commission on the transaction was $1,600; that he had been overpaid his commission on the $10,000 by $25.52, and that the balance of $17,000 on the said first year's rent had not been paid, the said lessee having disappeared from Florida soon after making the initial payment of $10,000. This plea was stricken by order of court upon motion of plaintiff, and the defendant was allowed to file 'new pleas to the special count.' Thereupon, the defendant filed what he termed an 'additional or amended' plea to the said special count, wherein he alleged, in substance, that he had employed the Florida Investment Service, Inc., for whom the plaintiff and one Kingsland were their salesmen, 'to find a lessee' of the property described in the declaration, for a period of ninety-nine years, and for which he was to be paid the following sums: $27,700 cash, and a like sum for each of the next succeeding nine years; $27,000 for each of next succeeding ten years; and $25,000 for each of next succeeding seventy-nine years, for which service, when rendered, the said corporation and its said two salesmen were to receive from defendant $6,400 as commission; that plaintiff and associate introduced to defendant one Caron as a man who was ready, willing, and able to take the lease upon said terms, possession of the property to be delivered May 1, 1926, but the $27,000 cash to be paid some months earlier; that Caron was a stranger to defendant, but prior to the execution of the lease, in discussions with the plaintiff and Kingsland, defendant learned that Caron was to get a share of the commission, and this information created in the mind of defendant the suspicion that Caron was 'shoestringing' on the money of some one else, and on the day when lease was to be executed it was found that Caron was not prepared to pay the $27,000 in cash as stipulated for, but could only pay $10,000, and wanted until May 1, 1926, to pay the remaining $17,000, whereupon defendant protested that he could not accept $10,000 and pay $6,400 commission out of that, and that he was ready to abandon the negotiations with Caron, when the corporation, by its president, the plaintiff herein, acting for himself, the corporation, and Kingsland, as an inducement to defendant to consummate the transaction, proposed to take a pro rata part of the commission out of the $10,000, and the remainder out of the $17,000; that he would not have signed the lease had not the said corporation through the plaintiff agreed to look to the said $17,000 for the principal part of the said commission; that Caron has failed to pay any part of the said sum of $17,000; and defendant was compelled to declare, and have the court adjudge a forfeiture of the lease, and that the defendant has overpaid the plaintiff his pro rata part of the commission on the said $10,000. This plea was also stricken by the court upon motion of the plaintiff. The common counts were withdrawn, and default was entered on the special count. The cause was submitted to a jury, and a verdict was returned for the plaintiff.

There are but two errors assigned, and they call into question the rulings of the court on the motion to strike the original plea, and the 'additional or amended' plea to the special count of the declaration.

It has been frequently held here that striking a pleading is a severe remedy, and should be resorted to only in cases palpably requiring it for the proper administration of justice (Ray v. Williams, 55 Fla. 723, 46 So. 158; Southern Home Ins. Co. v. Putnal, 57 Fla. 199, 49 So. 922; Guggenheimer & Co. v. Davidson, 62 Fla. 490, 56 So. 801; Burr v. Hull, 66 Fla. 20, 63 So. 300), and that a plea must be wholly irrelevant to authorize striking thereof. McIver v. Croom, 60 Fla. 123, 53 So. 545; St. Petersburg Novelty Works v. Battle, 66 Fla. 303, 63 So. 445; Southern Home Ins. Co. v. Putnal, 57 Fla. 199, 49 So. 922; Crandall Florida Common Law Practice 99.

The 'additional or amended' plea sets up a contract different in certain...