Gaither v. Anderson

• Decision Date: 28 January 1932
• Citation: 139 So. 587,103 Fla. 1190
• Court: Florida Supreme Court
• Parties: GAITHER v. ANDERSON.

139 So. 587

103 Fla. 1190

GAITHER v. ANDERSON.

Florida Supreme Court, Division B.

January 28, 1932

Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.

On rehearing.

Former opinion reversed, and judgment of lower court reversed for new trial.

For former opinion, see 135 So. 840.

COUNSEL Giles J. Patterson, of Jacksonville, and Mabry, Reaves & White, of Tampa, for plaintiff in error.

Crawford & May and H. L. Anderson, all of Jacksonville, for defendant in error.

OPINION

PER CURIAM.

In a suit at law involving a claim of $14,400 for unpaid balance of a $40,000 real estate commission, there was a submission of the cause to a jury which returned a verdict for the defendant after the court had overruled plaintiff's motion for a directed verdict in his favor. Motion for a new trial was denied, and plaintiff took writ of error.

By a memorandum decision without opinion the judgment rendered was affirmed by Division B of this court on July 9, 1931. After that, however, a rehearing was granted on plaintiff in error's petition, the prayer being that the court reconsider the record as to the grounds of plaintiff's motion for a new trial on account of newly discovered evidence.

At the trial, the principal controversy between the parties was (1) whether the contract of March 20, 1925 which plaintiff Gaither had procured for the sale of the lands to O. B. Stuart and associates, was an option contract or a binding contract of sale such as would have entitled the plaintiff to his commissions for merely procuring it; (2) if it was an option contract only at its inception, whether it had been thereafter sufficiently complied with, under its terms, to ripen into a binding contract of sale.

Whether or not the contract as drawn was an option contract at its inception as defendant claimed was determined by the trial judge adversely to plaintiff in error. By that ruling it was held by the court below that such contract was not a binding contract of sale, and did not become so until after Stuart had paid each of five agreed installments of the purchase price, as provided in the contract, the last installment being one of $100,000 which fell due December 1, 1925.

Upon such theory the cause was submitted to the jury to determine as a question of fact, whether or not the last installment of $100,000, which amount of money had been paid to Anderson was paid to him under the option contract just referred to so as to fix plaintiff's right to his commission of $40,000 on the sale he was claiming to have made by reason of procuring its execution.

On the authority of Behrman v. Max (Fla.) 137 So. 120, and Helie v. Wickersham (Fla.) 137 So. 226, we affirm the construction placed on the contract by the trial judge, and hold that the issue of payment under it was properly submitted to the jury to determine as a question of fact whether the contract ever ripened into one of purchase and sale, i. e., whether the required payments under it were made.

Under the terms of the contract itself it is pertinent to point out that it was specifically agreed 'that this contract is and shall remain an option contract, and not otherwise, until the payment herein to be made by the buyers to the seller,' etc. Under this cause, the trial judge properly ruled that no binding contract of sale resulted until the last of the five specified payments provided for therein had actually been made by the buyers to the sellers, and that, until such payments should be completed, plaintiff's commissions claimed under the second count for work done had not been earned.

O. B. Stuart and associates by this contract were bound to make five initial payments under it, aggregating $200,000 on or before December 1, 1925. Stuart, in his deposition, testified that these payments were in fact made.

Defendant, on the other hand, denied that such payments were made under the contract of March 20, 1925, and asserted, on the contrary, that the last payment of $104,000 he received, which should have been the $100,000 payment due under the contract on December 1, 1925, was in fact the first payment under another entirely new and different sale of the property, which had been made by defendant to Seashore Estates, Inc., without plaintiff's assistance, after the first contract of March 20, 1925, had been surrendered and canceled in September, 1925, because of inability of purchasers to perform it.

Whether or not the payments aggregating $200,000, which the evidence tended to show were received by Anderson from some source, after the contract of March 20, 1925, was executed, were received by him under that contract, or under the alleged disconnected and subsequent sale, was the controlling issue submitted to the jury, and found by it in defendant's favor.

No such defense as this was suggested by defendant's pleadings.

It is evident from the...