Blue v. Staten
| Decision Date | 18 August 1922 |
| Citation | 93 So. 686,84 Fla. 274 |
| Parties | BLUE v. STATEN. |
| Court | Florida Supreme Court |
Rehearing Denied Oct. 26, 1922.
Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.
Action by Ida M. Staten against W. M. Blue. Judgment for plaintiff and defendant brings error.
Reversed.
Syllabus by the Court
Breaches of contracts employing broker to procure purchaser, and to effect sale of owner's property, distinct causes of action. There is a recognized distinction between the employment of a broker to find or procure a purchaser for the property of another and his employment to effect a sale of such property. Breaches of such contracts by the owner are distinct causes of action.
One count in declaration containing two causes amenable to objections of ground of duplicity. One count in a declaration containing two causes of action is amenable to objections upon the ground of duplicity.
Duplicity in pleading may be presented by a motion for compulsory amendment. Duplicity in a pleading must, at common law, be taken advantage of by special demurrer. Special demurrers in common-law actions have been abolished in this state, but alleged duplicity may be presented by motion for compulsory amendment under the statute.
Objections to pleading on ground of duplicity, not presented until after verdict, waived. Objections to a pleading upon the ground of duplicity, not presented until after verdict, are waived.
Evidence held insufficient to sustain verdict for commission on theory of procuring purchaser as agent or effecting sale. Evidence examined, and found insufficient to sustain the verdict and judgment for plaintiff, either upon the theory that plaintiff, as agent for defendnat, procured a purchaser or effected a sale of the property.
Knight, Thompson & Turner, of Tampa, for plaintiff in error.
J. W Sherrill and Mabry, Reaves & Carlton, all of Tampa, for defendant in error.
This is an action for the recovery of commissions alleged to have been earned by plaintiffs in procuring a purchaser and effecting a sale of certain lands belonging to defendants located in Hillsborough county.
The cause of action declared upon in the first count of plaintiff's declaration is that 'the defendants * * * employed the said plaintiff to find and procure for the said defendants a purchaser for said lands' at and for a stated price per acre; that plaintiff 'found, procured and produced a purchaser for the said lands at the price * * * agreed upon;' that a sale of the lands of said defendants to a purchaser named 'was brought about and consummated through the efforts of the plaintiff in that behalf' and that, notwithstanding the consummation of said sale, defendants have not paid the plaintiff the commissions, or any part thereof, agreed by them to be paid and earned by her. The declaration also contains several common counts in assumpsit.
Pleas were filed, and upon a trial verdict and judgment were for plaintiff, to review which writ of error was taken. When plaintiff rested her case, upon motion of counsel in their behalf, the suit was dismissed as to all defendants except plaintiff in error.
It is urged in behalf of plaintiff in error that the judgment should be reversed because it is not supported by the evidence. This argument rests primarily upon the assumption that plaintiff seeks to recover upon the theory that she procured a purchaser for the property. The declaration however, is not predicated upon that theory alone. It contains an allegation that plaintiff procured a purchaser for the property, but it also alleges that plaintiff effected a sale of the property. These are distinct causes of action. Wiggins, Adm'r, v. Wilson, 55 Fla. 346, 45 So. 1011; Elliott v. Gamble, 77 Fla. 798, 82 So. 253. Because two causes of action are contained in one count, the declaration would have been amenable to objections upon the gound of duplicity if the point had been raised. At common law this objection could have been raised by special demurrer only. 7 Enc. of Pl. & Pr. 243; Karnuff v. Kelch, 69 N. J. Law, 499, 55 A. 163. But in this jurisdiction special demurrers in common-law actions have been abolished. Section...
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