Bryan v. Justice, 70--768
| Decision Date | 04 May 1971 |
| Docket Number | No. 70--768,70--768 |
| Citation | 247 So.2d 340 |
| Parties | Charles F. BRYAN, Appellant, v. Jack JUSTICE, Appellee. |
| Court | Florida District Court of Appeals |
Bolles, Goodwin, Ryskamp & Ware, Miami, for appellant.
Marvin M. Green, Miami Beach, for appellee.
Before PEARSON, C.J., and BARKDULL and SWANN, JJ.
The appellee brought an action against the appellant to recover a real-estate brokerage commission claimed to be due under an exclusive listing of the property and upon the allegation that the broker had produced a purchaser ready, willing and able to purchase the property in accordance with the terms of the listing agreement. The appellant denied all of the allegations of the complaint except the allegation that he had refused to pay the commission. In addition, the appellant filed three paragraphs titled 'Affirmative Defenses.' The trial court entered a summary final judgment for the amount of the commission. The judgment was based upon the pleadings and exhibits thereto and an affidavit of the defendant-appellant in support of his own motion for summary judgment. No depositions or other forms of discovery were in the file.
One of the affirmative defenses is as follows:
This affirmative defense is the main thrust of the appeal. Appellant urges that because a husband has no authority to bind his wife to the sale of jointly held property and his own affidavit shows that the property was held as an estate by its entirety and that the broker knew of this defect, therefore, the appellee could not recover a brokerage commission. We think that the law is well established in Keyes Co. v. Moscarella, Fla.App.1969, 223 So.2d 83, that a person giving an exclusive listing agreement to a broker is bound even though the property is not owned by him at the time of the exclusive listing agreement. This general rule has been held to be subject to an exception where the broker had knowledge of his employer's inability to deliver good title because of a refusal of the co-owner to join in the employment. See Gray v. Blake, 131 Colo. 560, 283 P.2d 1078 (1955); Lovejoy v. Reed, 302 Ky. 153, 193 S.W.2d 1013 (Ky.App.1946). App.1946).
In determining the propriety of the summary judgment, it is necessary for the court to give the party against whom the summary judgment is entered, the benefit of every reasonable...
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...of his employer's inability to deliver good title because of a refusal of the co-owner to join in the employment. Bryan v. Justice, 247 So.2d 340, 341 (Fla.3d DCA 1971); Chastain v. Carroll, 307 So.2d 491 (Fla.2d DCA 1975); see also, Hensley Ins. Co. v. Echols, 159 Fla. 324, 31 So.2d 625 (1......
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...fact as to whether appellee had knowledge of appellants' inability to deliver good title. Both parties rely upon Bryan v. Justice, Fla.App.3rd, 1971, 247 So.2d 340, which followed the Keyes Co. decision, Supra. In Bryan, the Third District Court of Appeal . . . We think that the law is well......
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