Fechtmeyer v. Caribbean Keys
| Decision Date | 16 November 1960 |
| Docket Number | No. 1880,1880 |
| Citation | 124 So.2d 521 |
| Parties | Harold FECHTMEYER, doing business as Fechtmeyer Real Estate, Appellant, v. CARIBBEAN KEYS, a Florida corporation with its principal place of business in Boca Raton, Florida, and Coast Line Construction Company, a Florida corporation with its principal place of business in Boca Raton, Florida, Appellees. |
| Court | Florida District Court of Appeals |
Nowlin & Adams, Delray Beach, for appellant.
P. J. Brannen, Jr., Boca Raton, for appellees.
Summary final judgment was entered on behalf of the defendant corporations, Caribbean Keys and Coast Line Construction Company, hereinafter referred to as the 'construction company'; and the plaintiff, Harold Fechtmeyer, a real estate broker, has brought this appeal upon the proposition that there is a genuine issue of material fact precluding summary judgment.
Fechtmeyer sought in the suit below to recover a real estate commission for a sale which he claims to have made as the exclusive sales agent for Caribbean Keys, which acted as sales agent for the construction company in selling lots in its subdivision. Fechtmeyer was to receive a 4 1/2% commission upon 'package lot deals' or sales of lots with houses already upon them or to be constructed upon them as part of the sales contract.
Contained within the amended complaint were certain allegations comprising the basis for Fechtmeyer's suit. The following, in essence, comprise the allegations advanced. Fechtmeyer found a purchaser, Clarence Robert Critchfield, who in February, 1958, entered into a contract with the construction company for purchase of a house and lot for $34,400, paying $500 at the time the contract was signed and agreeing to pay an additional $2,940.00 when he accepted the house plans. On March 14, 1958, Critchfield sent Fechtmeyer a check for $3,000 to be paid to the construction company upon acceptance of the house plans by the purchaser. Critchfield, pursuant to a provision of the purchase contract, sought and received from a lending agency approval for a loan. In the latter part of April, 1958, John E. Feldmann, president of the construction company, informed Fechtmeyer that Critchfield had accepted the house plans, and Fechtmeyer was shown an agreement to that effect signed by Critchfield. Thereupon, Fechtmeyer endorsed the $3,000 check to the construction company and was given a receipt from Feldmann. Subsequently, the construction company notified Fechtmeyer that Critchfield had refused to consummate the contract and that the company intended to retain as a forfeiture the $3,500 paid. At the request of the construction company, Fechtmeyer agreed to accept 5% of the $3,500 in the event of default by Critchfield and drew up a statement to that effect. On June 1, 1958, Fechtmeyer terminated his exclusive sales agreement with Caribbean Keys, afterwards learning that the construction company, instead of declaring the $3,500 as a forfeiture, applied that sum to the sale of another house and lot to Critchfield. When Fechtmeyer demanded a 4 1/2% commission of the sales price under the contract of purchase, the construction company refused to pay it.
Attached to and made a part of the complaint by reference were copies of the exclusive sales agreement, the contract with Critchfield, the receipt from the construction company, and Fechtmeyer's agreement to accept 5% of the $3,500 deposit.
In the main, the defendants denied the allegations of the amended complaint, except for those portions which assert execution of the sales contract and the contract with the purchaser, the receiving by plaintiff a receipt for the $3,000 check, and agreement by the plaintiff to accept 5% of the $3,500 as his commission. Defendants also by their answer alleged that the plans for the house were never agreed upon nor accepted, either by Fechtmeyer or the defendants.
The February 25, 1958, contract with Critchfield provided that '* * * this contract shall be deemed to be in full effect upon approval of the purchaser by the lending agency for mortgage of Ten Thousand ($10,000.00) dollars, and the approval of the plans by the purchasers.' It also provides a schedule of installment payments of which the following is a part:
'Deposit mentioned above---$500.00
At time of accepting plans---$,940.00''
When Fechtmeyer endorsed the $3,000 check, the receipt given him read as follows:
'April 30, 1958
'Received of...
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...is material; it does not determine the issue. 30 Fla.Jur., Summary Judgment, § 10, p. 348. As was observed in Fechtmeyer v. Caribbean Keys, Fla.App.1960, 124 So.2d 521, at 524: 'In a proceeding for summary judgment the burden of proof is upon the party moving for summary judgment to show la......
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