Cheek v. Long

• Decision Date: 13 May 1970
• Docket Number: No. 69--397,69--397
• Court: Florida District Court of Appeals
• Parties: Allen Lee CHEEK and Charles William Johnson, d/b/a Cheek & Johnson, and Edna Watson, Appellants, v. Alma LONG, Appellee.

Page 349

235 So.2d 349

Allen Lee CHEEK and Charles William Johnson, d/b/a Cheek & Johnson, and Edna Watson, Appellants, v. Alma LONG, Appellee.

No. 69--397.

District Court of Appeal of Florida, Second District.

May 13, 1970.

Paul Ritter, Winter Haven, for appellants.

Eugene W. Harris, of Peterson, Carr, Chiles & Harris, Lakeland, for appellee.

PIERCE, Judge.

Appellants Allen Lee Cheek and Charles William Johnson, d/b/a Cheek & Johnson, and Edna Watson, real estate brokers, appeal from an order setting aside a verdict and judgment in their favor as plaintiffs and entering judgment for defendant-appellee Alma Long.

On February 28, 1967, Mrs. Long signed an 'Exclusive Right of Sale' Agreement to sell her property containing approximately 135 acres for $35,000.00. There is no evidence that Mrs. Long knew the acreage or front footage on Highway No. 92, where her boundaries were, or that she determined the selling price on any acreage calculation. A few days after signing the exclusive listing Mrs. Long learned from the local Tax Assessor's office that there were around 115 acres in the property, and she conveyed this information to appellant Watson. After negotiations through appellant Johnson, a co-operating broker, Mrs. Long and one Mark Reynolds signed a 'Receipt for Deposit Offer to Purchase and Contract of Sale' prepared by the brokers and dated July 27, 1967, in which the property was listed as approximately 110 acres more or less with highway frontage of approximately 725 feet. Provision 8 of this agreement provides in part that 'if the Buyer desires a survey on the property, he may have the property surveyed at his expense prior to closing date.' Reynolds demanded a survey. Mrs. Long refused to pay for one and appellants agreed to obtain and pay for one out of their commission. The surveyor declined to make the survey, but based on his field notes he disclosed to all parties that he did not believe the property contained 110 acres or 725 feet frontage on Highway 92. Reynolds refused to close on the terms of the contract and made a counter offer to buy the property on the basis of $310.00 per acre if the highway frontage was 725 feet, $300.00 per acre if the highway frontage was approximately 625 feet, or $290.00 per acre if the highway frontage was 525 feet. Mrs. Long declined this counter offer and Reynolds refused to close the sale. Appellants returned the cash deposit of $1,000.00 to Reynolds without the knowledge or consent of Mrs. Long. Appellants demanded their real estate brokerage commission from Mrs. Long and upon Mrs. Long's refusal to pay, instituted this action in the lower Court. Mrs. Long counterclaimed for one half of the deposit which was returned to Reynolds.

Appellants contend that they performed all the conditions of their contract with Mrs. Long in that they procured a purchaser ready, willing and able to purchase Mrs. Long's property for the price and on the terms specified but that the sale was not consummated because of the deficiency in the amount of acreage represented by the owner. Mrs. Long asserts that the sale of the property was not consummated through any fault of hers, and that consequently the conditions of the contract were not met by the appellants.

Appellants argue that they had a right to rely on the representations of Mrs. Long as to the quantity of land offered for sale and that failure of the purchaser to consummate the sale because of deficiencies of quantity was not the fault of the brokers. The cases relied on by appellants are not analogous to the factual situation here.

We find no cases directly in point. In Sullivan v. Brown, 1914, 67 Fla. 133, 64 So. 455, there was a deficiency in the quantity of land and our Supreme Court held that the broker was entitled to his compensation where there was no guilty knowledge of the deficiency on the part of the broker. The Court said:

'As the owner referred the broker to the tax books for the dimensions of the property the owner is bound by the reference, and as the evidence does not tend to show misrepresentations or Guilty knowledge on the part of the broker, before a binding contract of sale was made, the latter cannot be deprived of his commissions because the tax books to which the owner referred the broker for dimensions of the land showed more land than the seller owned.' (Emphasis supplied).

In R.J. & B.F.Camp Lumber Co. v. Tedder, 1919, 78 Fla. 183, 82 So. 865, a case dealing with a defect in title rather than a deficiency in quantity of land, the Court said:

'Tedder (the broker) was assured that the titles were good, and he had the right to rely on that assurance, and if a sale for any part of the lands failed because of defective titles Of which he had no notice, it was no fault of his, and he was entitled to his compensation for the sale of the entire acreage. * * *' (Emphasis supplied).

In Zide v. Zenchenko, Fla.App.1958, 101 So.2d 64, the 3rd District Court held that a real estate broker was not entitled to a commission on a sale that failed because of a defect in title where he had accepted employment with knowledge of the defect and the fact that it might preclude a sale.

And in Hardin-Lowrey Realty Co. v. Hine, Fla.App.1968, 213 So.2d 308, where the purchaser and the seller had entered a contract but the sale was not consummated because the purchaser's attorney found a serious defect in the title, this 2nd District Court held that if the broker knew or should have known of title defects which defeated the sale, he was not entitled to his commission. See also Hart v. Pierce, 1929, 98 Fla. 1087, 125 So. 243; Knowles v. Henderson, 1945, 156 Fla. 31, 22 So.2d 384, 169 A.L.R. 600; 5 Fla.Jur., Brokers, § 50; 12 C.J.S. Brokers § 95(4), p. 227; 156 A.L.R. 1387.

In the case sub judice the brokers did have or should have had knowledge of the deficiency before the Reynolds contract was made. The listing agreement provided that the realtor was obligated 'to carefully inspect (the) property and secure complete information regarding it.' This they did not do. Appellant Watson admitted that Mrs. Long did not intentionally misrepresent the land to her and that Mrs. Long was acting in good faith when she told the broker that she had about 135 acres of land. She also stated that there was a good deal of uncertainty about the amount of frontage and acreage and that she learned from an engineer (who was interested in...