Elliot v. Gamble
| Decision Date | 30 May 1919 |
| Parties | ELLIOT v. GAMBLE. |
| Court | Florida Supreme Court |
Rehearing Denied June 25, 1919.
Error to Circuit Court, Leon County; E. C. Love, Judge.
Action by Breckenridge Gamble against F. C. Elliott. Judgment for plaintiff, and defendant brings error. Reversed, with directions.
Syllabus by the Court
A broker employed to sell, as distinguished from a broker employed to find a purchaser, is not entitled to compensation until he effects a sale or procures from his customer a binding contract of purchase within the terms of his authority.
COUNSEL W. C. Hodges and Fred H. Davis, both of Tallahassee, for plaintiff in error.
F. B. Winthrop and W. J. Oven, both of Tallahassee, for defendant in error.
This is an action to recover commissions for selling real estate. The declaration is in two counts. The second count having been abandoned, the trial was had on the first, which alleged that the plaintiff in error was employed to sell, and that he produced a purchaser, ready, willing, and able to purchase, but defendant refused to convey. The demurrer to this count was overruled.
The distinction between a contract to sell and one to procure a purchaser is discussed in Wiggins v. Wilson, 55 Fla. 346, 45 So. 1011. This count fails to allege that the proposed purchaser entered into any contract that would bind him to take and pay for the property. Following the views of this court as expressed in the case of Wiggins v. Wilson, supra, we tink the court below erred in overruling demurrer to the first count of the declaration.
This decision has been followed since that time in Varn v. Pelot, 55 Fla. 357, 45 So. 1015, and several other decisions not necessary to be cited.
In view of the conclusion that is reached as to the declaration, it is not necessary to consider the other assignments of error.
The judgment below should be reversed, with directions to sustain the demurrer to the said count, and for such further proceedings as may be in accordance with law.
The record in this cause having been considered by this court and the foregoing opinion, prepared under chapter ---, Acts of 1919, adopted by the court as its opinion, it is considered, ordered and adjudged by the court that the judgment herein be, and the same is hereby reversed.
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Smith v. Shackleford
...Savings & Trust Co. v. McGriff, 61 Fla. 159, 54 So. 265; Carter v. Owens, 58 Fla. 204, 50 So. 641, 25 L. R. A. (N. S.) 736; Elliott v. Gamble, 77 Fla. 798, 82 So. 253; v. Staten, 84 Fla. 274, 93 So. 686; Sullivan v. Brown, 67 Fla. 133, 64 So. 455; Pensacola Finance Co. v. Simpson, 82 Fla. 3......
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Knowles v. Henderson
... ... the terms of his authority. Wiggins v. Wilson, 55 ... Fla. 346, 45 So. 1011; Varn v. Pelot, 55 Fla. 357, ... 45 So. 1015; Elliot v. Gamble, 77 Fla. 798, 82 So ... 253; Blue v. Staten, 84 Fla. 274, 93 So. 686; E ... A. Strout Farm Agency v. Hollingsworth, 92 Fla. 673, 110 ... ...
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E.A. Strout Farm Agency v. Hollingsworth
...be included in the same count. See Wiggins v. Wilson, 55 Fla. 346, 45 So. 1011; Varn v. Pelot, 55 Fla. 357, 45 So. 1015; Elliott v. Gamble, 77 Fla. 798, 82 So. 253; Pensacola Finance Co. v. Simpson, 82 Fla. 368, So. 381. Where both of such distinct causes of action are embraced in the same ......
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Blue v. Staten
... ... These are distinct causes of action ... Wiggins, Adm'r, v. Wilson, 55 Fla. 346, [84 Fla ... 276] 45 So. 1011; Elliott v. Gamble, 77 Fla. 798, 82 ... So. 253. Because two causes of action are contained in one ... count, the declaration would have been amenable to objections ... ...