H. I. Resorts, Inc. v. Touchton

• Decision Date: 06 October 1976
• Docket Number: No. 75--1561,75--1561
• Citation: 337 So.2d 854
• Parties: H. I. RESORTS, INC., a Florida Corporation, Appellant, v. Dewey TOUCHTON, d/b/a Touchton Realty, Appellee.
• Court: Florida District Court of Appeals

Page 854

337 So.2d 854

H. I. RESORTS, INC., a Florida Corporation, Appellant, v. Dewey TOUCHTON, d/b/a Touchton Realty, Appellee.

No. 75--1561.

District Court of Appeal of Florida, Second District.

Oct. 6, 1976.

J. Hardin Peterson, Jr., of Peterson, Carr, Harris & Seacrest, Lakeland, for appellant.

R. Scott Bunn, of Straughn, Sharit, Bunn & Chilton, Winter Haven, for appellee.

SCHEB, Judge.

This case presents the question whether a buyer which defaults on several contracts procured for it by a broker may be liable to that broker for commissions.

Specifically, the plaintiff/appellee Touchton sought recovery for commissions from defendant/appellant in respect to two land transactions occurring in Boynton Beach, Florida, referred to as the Moore and Waite parcels, where the plaintiff produced contracts in July and September 1973, respectively; a transaction in Sanibel Island, Florida, known as the Anderson parcel, on which the plaintiff produced a contract in September 1973; and an Arkansas deal known as the Inman property contracted for in August 1973. The court directed a verdict in favor of the defendant as to the parcel in Arkansas, but the remaining transactions ¹ were considered by the jury which awarded the plaintiff a general verdict of $26,375. ² By stipulation of the parties $6,038.09 was added to the verdict. After allowing $788.57 as interest, and $282 for court costs, the trial judge entered an amended final judgment in favor of the plaintiff for $33,483.66. This appeal ensued with the defendant contending the trial court erred in failing to direct a verdict in its favor as to all the transactions in issue. On cross-appeal, the plaintiff contends that the court erred in directing a verdict against it on the Inman transaction. We affirm in part, reverse in part, and remand for entry of a modified judgment in favor of the plaintiff.

The plaintiff and defendant had a series of business relationships during 1972 and 1973. During this time the defendant, through its chairman of the board, Robinson Callen, purchased several properties through the plaintiff and paid the plaintiff a series of real estate commissions. During their early relationship in July 1972, the plaintiff broker agreed with Mr. Callen that the plaintiff:

'. . . waive(d) any right to a forfeited earnest money deposit and . . . assign(ed) any portion of said forfeited monies normally retained by the broker to H. I. Resorts, Inc. and/or Robinson Callen.'

The plaintiff claimed, however, that such understanding did not prevail in respect to the various transactions in this suit. Rather, plaintiff Touchton testified that his claims for commissions were based upon a subsequent meeting with Callen in May 1973. According to Touchton's testimony, at that time they had a meeting in Callen's home during which Callen said he wanted to expand H. I. Resorts by acquiring several new sites for motels. He wanted Touchton to visit these prospective sites, at Touchton's own expense, and procure contracts if the land proved desirable. In response to this new proposal, Touchton asked Callen:

'Mr. Callen, in other words, if I obtained a binding contract at the price and terms acceptable to you and the contingency of the contract are met at these various locations then I at that time I have performed and earned a commission.'

and Callen replied 'yes.'

Boynton Beach Transactions

When Callen, on behalf of the defendant, indicated an interest in obtaining motel sites in the Boynton Beach area, plaintiff associated a Boynton Beach real estate broker, Larry Giddens. Thereafter these brokers produced a contract dated July 19, covering a parcel of land and signed by the seller, Moore. It is unclear as to the exact date on which Callen signed this agreement; however, an addendum signed by Moore but not by Callen is dated July 24. Since his co-broker Giddens expressed concern about his right to receive a commission on the transaction, Touchton requested Callen to reduce to writing his agreement about paying a commission. By letter dated July 23, addressed to both Touchton and Giddens, Callen referred to the Moore property and stated:

'. . . when, as and if I and/or a corporation of which I am a principal takes title to the above property, I will pay total commission of twenty thousand dollars.'

At trial, Touchton testified that he received this letter, glanced at it and filed it, not realizing at the time that it did not correctly state their oral agreement. On rebuttal, he testified that if he had perceived the 'as, if or when' clause, he would have strenuously objected to it.

In the other Boynton Beach transaction, Touchton and Giddens produced a contract signed by Waite in September 1973. Unlike the Moore contract, the Waite contract contained an express provision whereby Callen had agreed '. . . to pay Larry T. Giddens and Dewey Touchton, cooperating brokers, a commission of $6,375.00.' When the defendant failed to close both the Moore and Waite transactions, the sums deposited as earnest money were forfeited.

Defendant contends that his agreement of July 1972, contemplated there would be no liability for commissions on either the Moore or Waite deals since the earnest money was forfeited; and further, that Callen's letter of July 23, 1973, to Touchton and Giddens on the Moore deal, emphasized the understanding was that there would be no liability on the defendant unless title passed to the buyer. Furthermore, at trial defendant objected to testimony about the alleged oral contract of May 1973, on the ground that testimony was inconsistent with the understanding evidenced by the letters of July 1972 and July 23, 1973, and therefore, voilated the Parol Evidence Rule. Defendant contends the trial judge erred in denying its motion for a directed verdict on both transations.

We find no merit to these contentions as they relate to the July 1972 agreement. Clearly the Parol Evidence Rule would not bar introduction of evidence of a subsequent oral contract which modified the former existing agreement between the parties. 13 Fla.Jur., Evidence, § 387.

We next consider these contentions as they relate to the letter of July 23, 1973, in which the buyer set forth his understanding of the prior oral agreement.

To begin with, the defendant did not plead estoppel or prove any change of position in reliance upon plaintiff's silence. In a case remarkably similar, a similar type letter was sent to confirm an oral brokerage contract. The broker receiving it voiced no objection to the understanding evidenced by the letter he received, but at trial, contended the letter did not accurately state his understanding. There, the court held that silence upon receiving the letter, while of evidentiary value on the question of whether the letter accurately reflected the conversation and agreement of the parties, did not constitute an assent as a matter of law. Thus, the court upheld a verdict in favor of the party who had received the letter and voiced no objection. See Trainer v. Fort, 1933, 310 Pa. 570, 165 A. 232. We agree with the court's holding in Trainer.

While we recognize that a buyer is not liable for a real estate commission in the absence of an agreement, Tutko v. Banks, Fla.App.3d 1964, 167 So.2d 110, here the alleged oral contract of May 1973, was a basis for recovery. While the testimony of the parties sharply conflicted as to their understanding of when a commission was due, we...