Burnham City Lumber Co. v. Rannie

• Decision Date: 19 April 1910
• Citation: 52 So. 617,59 Fla. 179
• Parties: BURNHAM CITY LUMBER CO. v. RANNIE.
• Court: Florida Supreme Court

52 So. 617

59 Fla. 179

BURNHAM CITY LUMBER CO. v. RANNIE.

Florida Supreme Court, Division B.

April 19, 1910

Headnotes Filed June 4, 1910.

Error to Circuit Court, Duval County; R. M. Call, Judge.

Action by the Burnham City Lumber Company against William R. Rannie. Demurrers to the declaration were sustained, and plaintiff brings error. Reversed and remanded.

Syllabus by the Court

SYLLABUS

A declaration, in a suit to recover commissions paid the defendant by plaintiff, that substantially charges that the defendant undertook to obtain from the owners of land a contract embracing terms demanded by T., who was seeking to buy it for the plaintiff, a corporation to be organized to take, them over, that the defendant represented to T. that the land could not be bought for a less price than that which he named to T., when in fact that price, unknown to T. or the corporation to which they were conveyed, covered commissions which the defendant was to receive from the owners, and which commissions on the completion of the transaction in ignorance of the facts were actually paid by the owners to the defendant, states a good cause of action.

When a person is employed to act as agent for another in dealing with a third person, and the nature of the employment is such that he is required to exercise judgment, discretion, or personal influence in the execution of such agency, he cannot act also as agent of the third party in the transaction without the knowledge and consent of his principal.

COUNSEL Bisbee & Bedell and W. B. Owen, for plaintiff in error.

Barrs Odom & Browder and J. L. Doggett, for defendant in error. The plaintiff in error sued the defendant in error in the circuit court of Duval county in an action at law to recover the sum of $50,000 alleged to have been fraudulently had and received by the defendant of the plaintiff as commissions on the purchase price of certain real estate. There are six counts in the declaration. The last, a count for money had and received, and the fourth, are abandoned. The first count is as follows:

'Burnham City Lumber Company, a corporation created and existing under the laws of New York and having its principal place of business at New York City, county of New York, state of New York, by Owen & Royall, and Young &amp Adams, its attorneys, sues William R. Rannie, for that whereas, heretofore, to wit, between the 5th day of December 1905, and the 12th day of January, 1906, the said defendant made and entered into an agreement with one J. C. Turner and therein and thereby agreed with said Turner to act as the agent and broker of said Turner in purchasing for him from A. T. and F. W. Squires certain timber lands situated in Taylor county, Fla., containing 45,000 acres of land, or thereabouts, that as such agent and broker and in and by the terms of said agreement the said defendant covenanted and agreed with the said Turner to use his best efforts in purchasing said timber lands for said Turner at the lowest possible price at which the same could be obtained, and in performing his duties as such agent and broker for said Turner in regard to the purchase of said lands to observe the highest degree of good faith towards the said Turner, and not to receive any other commission or brokerage or compensation whatsoever for procuring the sale of said lands to the said Turner, except such sum as it was agreed should be paid to the defendant by the said Turner for his said services as such broker and agent, that the defendant then and there at all times stated to the said Turner that the price at which defendant stated to him said timber lands could be purchased was the lowest price at which said lands could be purchased, and that the defendant had no agreement whatsoever by which he was to receive any commission whatsoever from the owner of said lands or from any one else whomsoever for bringing about a sale thereof to the plaintiff. That said Turner believed and relied on the said statements of said defendant, and in the full belief thereof and reliance thereon agreed to pay to the defendant, in case he purchased said timber lands, a commission or brokerage amounting to $50,000 or thereabouts. That afterwards the said Turner, who had been acting for the plaintiff in the said transaction, as the said defendant well knew, assigned his rights under said agreement with the defendant to the plaintiff, to which assignment the said defendant agreed and consented; and the plaintiff, believing and relying on the said statements of the defendant to said Turner, as the defendant well knew, and in full belief thereof and reliance thereon, assumed the obligation of said Turner to pay to the defendant in the event of the purchase of the said timber lands a commission or brokerage amounting to $50,000 or thereabouts.

'That subsequently, and on or about the 29th day of June, 1906, at the city of Jacksonville, Fla., the plaintiff did purchase said timber lands from said A. T. and F. W. Squires, and immediately thereafter, without having any knowledge that said defendant had not exercised the highest degree of good faith in his dealings with the plaintiff as plaintiff's agent and broker, and without knowing that defendant had an agreement with the sellers of said lands to receive from them a commission for bringing about a sale thereof, paid to said defendant the sum of $50,000.

'That the said defendant did in fact at all said times, without plaintiff's knowledge or consent, have an agreement with said A. T. and F. W. Squires, the sellers of said timber lands, for a commission or brokerage for bringing about the sale thereof, and that the price at which said defendant sold said land to the plaintiff was not the lowest price at which said lands could be procured, and that the defendant did not exercise the highest degree of good faith in his dealings with the plaintiff as its agent and broker, but, on the contrary, sought to further the interests of the defendant himself and to cheat and defraud the plaintiff by causing it to pay a larger commission than it would otherwise have paid.

'That the defendant on or about the 29th day of June, 1906, without plaintiff's knowledge or consent, was paid by and received from said A. T. and F. W. Squires as commission for bringing about a sale of said timber lands to the plaintiff a commission of 2 1/2 per cent. of the purchase price at which the property was purchased by the plaintiff from said A. T. and F. W. Squires.

'That plaintiff was wholly unaware that defendant had an agreement to receive commission from the sellers of said timber lands, or that he had received the sum as aforesaid on or about the 29th day of June, 1906, or that he had in any way failed in his duty as the agent and broker of the plaintiff, until after plaintiff had paid to defendant said sum of $50,000 as defendant's commission or brokerage for bringing about the sale of said premises to the plaintiff.

'That because of defendant's said acts as aforesaid, defendant forfeited and lost all right and claim to receive from the plaintiff said sum of $50,000, or any other sum as commission, and that said sum of $50,000 so paid defendant by plaintiff as aforesaid, without plaintiff's knowledge of said deceit and wrongful acts on the part of the defendant, was then and there wrongfully and fraudulently had and received by the defendant from plaintiff. That no part of the same had been paid by the defendant to the plaintiff, although duly demanded prior to the commencement of this action, and plaintiff claims $75,000 as damages.'

The second count is generally like the first count, except that it alleges the agreement, to have been between the defendant and plaintiff through one J. C. Turner, who was acting for the plaintiff, and alleges a breach of faith on the part of Rannie in endeavoring to have the land overestimated in order to cause plaintiff to pay more for said property than plaintiff would have paid had the estimate been a correct and proper one.

The third and fifth counts are as follows:

'(3) And the said plaintiff, by its said attorneys, further sues the said defendant for that whereas, heretofore, to wit, between the 5th day of December, 1905, and the 12th day of January, 1906, the said defendant, for the purpose of inducing the plaintiff to employ the defendant as its broker and agent in purchasing from A. T. and F. W. Squires certain timber lands situated in Taylor county, Fla., and to pay defendant a commission as such broker and agent, falsely and fraudulently, and with intent to deceive and defraud the plaintiff, represented and stated to one J. C. Turner, who, as defendant well knew, was acting for the plaintiff in said transaction, that the price at which the plaintiff was offered said lands by defendant was the lowest price at which defendant could procure same for the plaintiff, and that defendant had no agreement whatsoever with said A. T. and F. W. Squires, or with any one else, whereby defendant was to receive any commission or brokerage for bringing about a sale of said lands to plaintiff. That the plaintiff relied upon the statements of said defendant and believed the same to be true, and relying on, and believing the same, then and there through said Turner employed said defendant as plaintiff's broker and agent in the purchase of said lands and agreed to pay to the defendant, in case plaintiff purchased said lands, a commission of $50,000. That nevertheless said statements were, as defendant well knew, wholly false and fraudulent, and that at all said times defendant had an agreement with said A. T. and F. W. Squires, under the terms of which defendant was to receive a commission of 2 1/2 per cent. in case he brought about a sale of said lands to said plaintiff,

...