Cohen v. Mohawk, Inc.

• Decision Date: 24 January 1962
• Docket Number: No. 31251,31251
• Citation: 137 So.2d 222
• Parties: Joe COHEN and Julius Jay Perlmutter, Petitioners, v. MOHAWK, INC., a Florida corporation, Ansan, Inc., a Florida corporation, and Canoga, Inc., a Florida corporation, Respondents.
• Court: Florida Supreme Court

Page 222

137 So.2d 222

Joe COHEN and Julius Jay Perlmutter, Petitioners, v. MOHAWK, INC., a Florida corporation, Ansan, Inc., a Florida corporation, and Canoga, Inc., a Florida corporation, Respondents.

No. 31251.

Supreme Court of Florida.

Jan. 24, 1962.

Rehearing Denied Feb. 19, 1962.

Sibley, Grusmark, Barkdull & King and James Lawrence King, III, Miami Beach, for petitioners.

Thomas H. Anderson, Miami, for respondents.

HOBSON, Justice.

This case is before us on a petition for writ of certiorari to the District Court of Appeal, Third District. Petitioner asserts that the decision of the District Court, reported as Mohawk v. Cohen, Fla.App., 125 So.2d 909, is in direct conflict with the decision of this Court in the case of McGehee Lumber Company v. Tomlinson, 66 Fla. 536, 63 So. 919. Upon the basis of this conflict, which will be discussed hereinafter, we have granted the petition for writ of certiorari and have taken jurisdiction of the cause. $The petitioners here, who were the plaintiffs in the trial court, are real estate brokers. In the summer of 1950 they were employed by the sole stockholder of the respondent corporations to find a single lessee for a term of ten years for a number of hotel and apartment properties owned by the respondent corporations. The testimony of the petitioner, Perlmutter, disclosed that at the time of the employment the parties had agreed to a 5% commission for brokerage service to be paid at the closing. Within a short time, the petitioners produced a lessee satisfactory to the respondents. At the time of closing the owner of the respondent corporations requested that the petitioners accept their commission over the ten-year term of the lease rather than in a lump sum. The petitioners agreed to do this and a memorandum was thereupon prepared and signed by the petitioners and by an agent of the respondent corporations. The agreement, which was also quoted in the opinion of the District Court provided, in part:

'Regarding the commissions earned in connection with services rendered by the undersigned, as brokers, in the matter of negotiating a lease on your behalf, * * *:

"You are to pay the total amount of $137,600 as commission for these services.

"It is understood and agreed that the commissions are to be paid over a period of ten years in installments of $13,750 per year as and when the rent is collected by you as lessor under the terms of the lease; it being understood that the first payment shall be made at the time of the closing.

"In accordance with the understanding and agreement of the undersigned parties, this shall act as your authorization to disburse the above stated commission payments in the following manner:

"50% of the amount due in each event shall be paid to the order of Julius Jay Perlmutter Associates, Inc. and the remaining

"50% to the order of Joe Cohen.

"It is specifically understood and agreed that any commissions due or any commissions remaining unpaid under this lease, such amounts of commissions due or remaining unpaid shall automatically become due and payable in full, in the event of the sale by you, your heirs or assigns, of any of the above leased properties."

The lessee went into possession of the demised properties and paid rent under the terms of the lease for approximately eight years. During this time, the petitioners received payments toward their commission in installments pursuant to the agreement quoted above. In February, 1958, however, the lessee informed the respondents that it was unable to pay the taxes and rent due under the lease, and the demised properites were therewith surrendered. Thereafter, the respondents made no further payments to the petitioners on the balance of their commission.

In August, 1958, the petitioners instituted this action to recover the balance alleged to be due them on their commission. In their amended complaint, it was alleged in essence that petitioners had been employed by respondents to procure a lessee for the properties in question, and that pursuant to such employmentA lessee satisfactory to the respondents was procured. It was then alleged that the 'Plaintiffs, having fully performed the service for the defendant corporations for which they were employed', entered into the agreement with the respondents, which is quoted, in part, above. As previously pointed out, the petitioner Perlmutter testified at the trial that the original agreement was that the commission would be paid in cash at the time of the closing, and that the first mention of paying the commission in installments was made at the time of the signing of the lease. At this time, according to the testimony of Perlmutter, the petitioners had fully performed everything required of them under the terms of their employment.

Trial of the cause was without a jury, and at the conclusion thereof the trial judge entered final judgment in favor of the petitioners for the balance of the commission alleged to be due them. The final judgment contained no findings of fact.

On appeal, the District Court of Appeal, Third District reversed and remanded with directions to enter judgment for the defendants, holding that the case was governed by the rule enunciated in Ballas v. Lake Weir Light & Water Co., 100 Fla. 913, 130 So. 421. The court stated:

'The case at bar presents a situation where the broker was proceeding on a contract under which his commission was to be paid out of a particular fund 'as and when the rent is collected.' Since the fund did not materialize, the broker could not recover on his contract.'

The district court, in its opinion, unquestionably recognized and extracted from the Ballas case a correct principle of law. That principle, as quoted by the district court, is:

"A...