Davis v. Battle

• Decision Date: 04 March 1938
• Citation: 182 So. 243,132 Fla. 240
• Parties: DAVIS et al. v. BATTLE et al.
• Court: Florida Supreme Court

182 So. 243

132 Fla. 240

DAVIS et al. v. BATTLE et al.

Florida Supreme Court

March 4, 1938

On Rehearing June 15, 1938.

Extraordinary Petition for Rehearing Denied July 6, 1938.

Suit by Ben Battle and another, a co-partnership doing business under the partnership name of Battle & Hicks, against Mary I. Davis and her husband, to subject defendant's property of the named defendant to equitable lien. Decree for plaintiff, and defendants appeal.

Reversed with directions.

BROWN J., dissenting.

ELLIS C.J., dissenting on original hearing.

BUFORD J., dissenting on rehearing.

On Petition for Rehearing. Appeal from Circuit Court, Dade County; Jefferson B. Browne, judge.

COUNSEL

Copeland & Therrel, of Miami Beach, for appellants.

Redfearn & Ferrell, of Miami for appellees.

OPINION

CHAPMAN Justice.

On June 13, 1937, plaintiffs below filed in the circuit court of Dade county, Fla., a suit in equity against Mary I. Davis, a married woman, to subject her separate property to an equitable lien for the sum of $1,137.50 growing out of the following instrument:

'Miami Beach Realty Board Standard Form A

'Deposit Receipt

'Miami Beach, Florida, February 28, 1936.

'Receipt is hereby acknowledged of the sum of: Five Thousand Six Hundred Dollars ($5,600.00) from J. Paul Baker, Jr.

'The above cashier's check for $4,600.00 to be held in the escrow department of the National Title Company pending final closing of this sale, as a deposit on account of the purchase price of the following described property upon the terms and conditions as stated herein.

'Description of property: Lots 3, 4, 5 and 6, of Block 27, Ocean Front Property of the Miami Beach Improvement Company, located at the Southeast corner of 36th Street and Collins Avenue, Miami Beach, Dade County, Florida. Also the fee simple title to a strip of land 16 feet wide and 100 feet long, bounded on the West by Lots 5 and 6 aforesaid, and on the East by Lots 3 and 4 aforesaid, said strip at one time having been an alley for the benefit of said property and said strip having heretofore been vacated by the City of Miami Beach, together with all riparian rights appurtenant to all aforesaid property.

'The full purchase price is $56,062.50; $26,062.52 cash of which the above $5,600, is part, to be paid by the purchaser on the closing of this transaction. The balance of $30,000. to be paid by purchaser giving a mortgage in the amount of $30,000 payable $10,000. in 1 year, $10,000. in 2 years and $10,000. in 3 years from date of closing of this transaction. Interest of 8% on mortgage, payable semi-annually. The entire mortgage can be paid off on any interest date except the first interest date which will be six months from the date of the above described mortgage.

'Property to be conveyed free and clear of all liens and incumbrances. Taxes to be pro-rated as of closing date.

'It is understood and agreed that this property is being sold and purchased subject to the restrictions and limitations of record common to the neighborhood, and subject to any easements for public utilities, which may be of record, or may become liens through pending legislation before consummation of contract.

'It is agreed that this transaction shall be closed and the purchaser shall pay the balance of the first payment and execute all paper necessary to be executed by him for the completion of his purchase within 30 days from delivery or tender to him of a complete abstract of the said property; otherwise the sum this day paid shall be retained by the seller as liquidated damages, and the parties hereto shall be relieved from all obligations under this instrument.

'The seller is to furnish a complete abstract showing his title to be good and marketable, but in the event that the title shall not be found good and marketable, the seller agrees to use reasonable diligence to make the said title good and marketable, and shall have a reasonable time so to do, and if after reasonable diligence on his part said title shall not be made good and marketable within a reasonable time, the seller shall return the money this day paid and all moneys that may have been paid under this contract, and thereupon he shall be released from all obligations hereunder. Or, upon request of the purchaser, he shall deliver the title in its existing condition.

'This contract shall be binding upon both parties when approved by the owner of the property above described.

'Battle & Hicks Broker

'By Wm. A. Rhodes.

'I, or we, agree to purchase the above described property on the terms and conditions stated in the foregoing instrument.

'J. Paul Baker, Jr. [Seal] or his assignee

'Witness:

'Wm. A. Rhodes

'R. T. Hicks

'I, or we, agree to sell the above mentioned property to the above named purchaser on the terms and conditions stated in the above instrument.

'Mary I. Davis [Seal]

'Witness:

'Catchings Therrel

'Wm. A. Rhodes

'I, or we, agree to pay to the above signed broker, as commission for finding a purchaser for the above property, the sum of Eleven Hundred Thirty-seven 50/100 Dollars ($1,137.50) or one-half of the deposit, in case same is forfeited by purchaser, provided the same shall not exceed the full amount of the commission.

'Mary I. Davis [Seal]

'George W. Davis [Seal]

'Witness:

'Catchings Therrel

'Wm. A. Rhodes'

The sum of $1,137.50 is a commission for finding a purchaser able and willing to buy the property, and, after appellees had performed each and every requirement of the instrument, the defendant below directed that a deposit of $5,600 be returned to the purchaser, and she, in turn, listed her property with other real estate brokers of Miami Beach at the sum of $65,000, it being asserted that the finding of a purchaser for the property was an agreement inuring to the benefit of the separate property of Mrs. Mary I. Davis.

A motion to dismiss the bill of complaint on a number of grounds was by the court overruled. On September 7, 1936, an answer was filed by Mary I. Davis and her husband, George W. Davis, denying the material allegations of the bill of complaint, the principal defense being that no money or other thing of benefit to the separate property of Mary I. Davis was received through the activities of the plaintiffs and that no increase of benefit to her separate property accrued, and she denied that the value thereof was enhanced, increased, or was benefited by the instrument, supra, of the parties.

Considerable evidence was taken before a special master authorized to make findings as to facts and law, and, after hearing all the testimony, the equities of the cause, he so reported, to be with plaintiffs and recommended a decree subjecting the separate property of Mary I. Davis to the payment of the real estate broker's commission in the sum of $1,137.50; that plaintiffs had an equitable lien on the property and the same should be sold to pay the same. On final hearing the equities were held to be with the plaintiffs, when an appeal was taken and the cause is here for review on a number of assignments of error.

It is asserted that the plaintiffs found a purchaser for the property, ready, willing, and able to pay for it; that the plaintiffs' part of the contract was executed and they were as a matter of law entitled to their commission in the sum of $1,137.50; that title to the property was in Mary I. Davis and she declined to close the trade but directed the 'binder' returned to the purchaser and another listing was made at an advance in price of about $9,000. The plaintiffs contend the contract of sale inured to the benefit of Mrs. Mary I. Davis, enhanced its value, and increased its benefits, all of which was denied by the defendants below. The written agreement was to find a purchaser for the property, ready, willing and able and the terms of the employment was not to sell the property. In the case of Hutchins & Co. v. Sherman, 82 Fla. 167, 89 So. 430, this court said:

'The authorities uniformly hold to the effect that, where a broker procures a customer willing, ready, and able to purchase property offered for sale according to the terms of the offer, and the transaction is defeated on account of some fault of the principal, the broker is entitled to his commission, although the transaction is not consummated. 9 C.J. 623; Camp. Lumber Co. et al. v. Tedder, 78 Fla. 183, 82 So. 865; Dotson v. Milliken, 209 U.S. 237, 28 S.Ct. 489, 52 L.Ed. 768; Schweid v. Storandt, 157 A.D. 855, 143 N.Y.S. 161; Beamer v. Stuber, 164 Iowa 309, 145 N.W. 936; Church v. Dunham, 14 Idaho 776, 96 P. 203; Smith v. Adelberg, 72 Wash. 434, 130 P. 494; Realth Bonds & Finance Co. v. Point Richmond Canal & Land Co., 171 Cal. 238, 152 P. 433; Richardson v. Olanthe Milling, etc., Co., 167 Ala. 411, 52 So. 659, 140 Am.St.Rep. 45.'

The rule as to commission for finding a purchaser ready, willing, and able to purchase is well settled in Florida. The usual procedure is in a common-law action, but, the defendant below being a married woman, her liability therefor, if any, must be determined by a court of equity. Section 2, article XI, of the Constitution of Florida, provides:

'Section 2: A married woman's separate real or personal property may be charged in equity and sole, or the uses, rents and profits thereof sequestrated for the purchase money thereof; or for money or thing due upon any agreement made by her in writing for the benefit of her separate property; or for the price of any property purchased by her, or for labor and material used with her knowledge or assent in the construction of buildings, or repairs, or improvements upon her property, or for agricultural or other labor be stowed thereon, with her knowledge and consent.'

The question for...