Blount v. Tomlinson

• Court: Florida Supreme Court
• Writing for the Court: HOCKER, J.
• Citation: Blount v. Tomlinson, 57 Fla. 35, 48 So. 751 (Fla. 1909)
• Decision Date: 16 February 1909
• Parties: BLOUNT v. TOMLINSON.

48 So. 751

57 Fla. 35

BLOUNT v. TOMLINSON.

Florida Supreme Court, Division B.

February 16, 1909

Headnotes filed March 26, 1909.

Error to Circuit Court, Hillsborough County; Joseph B. Wall, Judge.

Action by E. H. Tomlinson against B. W. Blount. Judgment for plaintiff, and defendant brings error. Reversed.

COUNSEL

D. C. McMullen, for plaintiff in error.

Macfarlane & Davis and Richard P. Marks, for defendant in error.

OPINION

HOCKER J.

This case is here on writ of error from a judgment of the circuit court of Hillsborough county in favor of E. H. Tomlinson against B. W. Blount for $4,300 and costs.

In March, 1906, the Peninsular Naval Stores Company, a Mr Stucky, and a Mr. Henderson owned a tract of 24,000 acres of land near Umatilla, which is in Lake county, Fla., their respective interests being one-third each. Mr. B. W. Blount the plaintiff in error, was the president and manager of the Peninsular Naval Stores Company. On the 19th day of March, 1906, the defendant in error, E. H. Tomlinson, wrote the following letter to B. W. Blount:

'Jacksonville, Fla. 3/19/06.

'B. W. Blount, Tampa, Fla.

'Dear Sir: I have a party to whom I can sell the sawmill timber on the 24,000 acres near Umatilla, and belonging to you and Mr. Henderson. Mr. Henderson said you wanted to retain the land. I had Mr. Henderson when here to meet Mr. Page (Cooney's man) and he gave a price of $3.00 net, this was two months ago. I wish you would give me your very best price and let me know what commission you can pay. I believe I can sell at it $3.25 and reserve the land. I usually charge 5% do not speculate on property placed with me for sale therefore I want your best price, and would like it with a map of the tract as early this week as you can give it. The tract I placed before you and Mr. Muller is cheap.

Yours truly.'

On the 21st Blount wrote the following letter to Tomlinson:

'Mar. 21, 1906.

'Mr. E. H. Tomlinson, Jacksonville, Fla.

'Dear Sir: I have yours relative to the Umatilla proposition. I am referring your letter to Mr. E. K. Nelson of Ocala for reply, who will send you map, prices, etc.

'Respectfully,

B. W. Blount.

'B. W. B.'

On the 22d of March, 1906, Mr. Nelson sent the following letter to Tomlinson in reply:

'Ocala, Fla., 3/22/06.

'Mr. E. H. Tomlinson, Jacksonville, Fla.

'Dear Sir: Yours of the 19th to Mr. Blount referred to me to-day. We have the exclusive handling of the Umatilla Timber and would be glad to sell you same; the price of this timber is $3.50 per acre for the mill timber alone, does not carry any land or turpentine rights. There is 5% commissions at this price, which we will divide equally with any one that will furnish a purchaser. If you have a party ready to do business we will be glad to take it up with you.

'Yours truly,

'The Blount Real Estate Company,

'Per E. K. Nelson, Secy. and Treas.'

Mr. Tomlinson says in his testimony: 'I consider that Mr. Blount's letter is the first that placed the property in my hands. This was the first letter I got from Mr. Nelson in reference to the matter. This correspondence so far constitutes the placing of this property in my hands for sale, but not exclusively because my correspondence continued with Mr. Blount.' Mr. Tomlinson further says: 'I do not claim these two letters I have introduced in evidence as the basis of my right to sell this property exclusively, because as the trade progressed changes developed. I do not base my claim on this correspondence, but there are subsequent changes that entirely changed the character of the contract. This original contract was for the timber only. Afterwards we changed the contract, and entered into negotiations for the timber and turpentine privileges, a sale of everything connected with the place. These negotiations were entered into by me with Mr. Blount and his agent, Mr. Nelson, who was supposed to carry out his principal's instructions.' He further says: 'I was informed that this property belonged and was owned by Mr. Blount, Mr. Henderson, and Mr. Stucky. I understood that Mr. Henderson and Mr. Stucky were interested in the property along towards the last of the trade. I did not know it at the beginning.' He further says that, about six weeks after the negotiations began, he discovered from correspondence that a Mr. Lester was representing Mr. Blount. All the negotiations about the sale of the turpentine and timber privileges fell through on the prices of $3 and $3.50 per acre, but finally the whole 24,000 acres were sold to a Mr. McGehee for $100,000. Mr. Tomlinson says he first got these figures from Mr. Lester, and that he presented them to Mr. Blount in front of the Law Exchange in Jacksonville, and Mr. Blount said that he would let the property go at $113,000, and pay him, Tomlinson, 5 per cent. commissions. This he says was the beginning of the new deal which terminated in the sale to McGehee. Mr. Tomlinson testifies that he agreed to give Lester one-fourth of his commissions of 5 per cent.; that he thought Lester was a good friend of Blount's, and he (Tomlinson) thought Lester could assist him in getting Blount to comply with his proposition to sell the turpentine privileges.

It is impossible to give any reasonably brief analysis of the long and confusing explanations of Mr. Tomlinson or of the other witnesses of the various letters and conversations which were had between the parties during these negotiations. Mr. Tomlinson admits that 'as a matter of fact I knew before this deal was consummated that Mr. Stucky and Mr. Henderson were interested in this property, this Umatilla tract, notwithstanding I was dealing with Mr. Blount as owner. I knew and understood that Mr. Stucky and Mr. Henderson were also owners in it, but I was dealing with Mr. Blount as I understood him to be the owner and controller; that is, that he had the management and control of the property.' He testifies that 'Mr. Blount promised me personally to give me $5,000,' a commission of 5 per cent. on $100,000.

Mr. McGehee testifies, in substance, that he purchased the Umatilla tract through Mr. Tomlinson's Real Estate Agency in Jacksonville; that, after various negotiations, he submitted the $100,000 proposition to Mr. Blount in Tampa. He does not think any one was present but himself, Tomlinson, and Blount; that Blount said that he would have to get into communication with Mr. Nelson, but he afterwards closed the deal in Ocala on that basis.

Mr. Blount testifies that he never owned the Umatilla tract of land; that at the time the deal with McGehee was made the property was owned by Stucky, Henderson, and the Peninsular Naval Stores Company; that he was president and manager of the latter company, and that the only way he became connected with the deal was as such president; that the matter of selling the property was taken up with Mr. Lester; that Lester represented him in dealing with Tomlinson; that he never put the property in Tomlinson's hands for sale, but did place it in Lester's, and, when it was sold, he paid Lester the commissions according to the agreement with him; that he represented all the owners in selling the property; that he never placed the property in Tomlinson's hands, and never agreed to pay him a commission; that he knew Lester and Tomlinson were handling this deal together; that he never had a conversation with Tomlinson as to what his share of the commission should be; that he put the property in Lester's hands for sale; that Tomlinson was representing the buyer and Lester, the sellers; 'that is what I thought, that he wrote to Tomlinson because Tomlinson wrote to him.'

Mr. Lester testifies, in substance, that he effected the sale through Tomlinson and was entitled to the 5 per cent. commission, which was to be divided in the proportion of one-third Blount. The latter says this was for the Blunt. The latter says this was for the company of which he was president.

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