Howell v. Blackburn

• Decision Date: 30 June 1930
• Citation: 129 So. 341,100 Fla. 114
• Parties: HOWELL v. BLACKBURN.
• Court: Florida Supreme Court

129 So. 341

100 Fla. 114

HOWELL v. BLACKBURN.

Florida Supreme Court

June 30, 1930

Commissioners' Decision.

Error to Circuit Court, Sarasota County; Paul C. Albritton, Judge.

Action by Albert E. Blackburn against D. F. Howell. Judgment for plaintiff, and defendant brings error.

Reversed and new trial granted.

COUNSEL

J. B. Hodges, of Lake City, and R. H. House, of Sarasota, for plaintiff in error.

Sawyer Surrency, Carter & Keen, of Tampa, for defendant in error.

OPINION

DAVIS C.

The plaintiff in this case instituted an action on the common count for work done and services performed by the plaintiff at the request of the defendant. In the bill of particulars filed in the cause the plaintiff claims the reasonable value of his services as a real estate broker in and about the sale of certain lands of the plaintiff located in Sarasota county that the plaintiff found a purchaser for said lands; that a contract of sale was signed and entered into; and that a sale was entered into; and that a sale was actually concluded. The case went to trial upon the general issue, and a verdict was rendered by the jury in favor of the plaintiff. A motion for new trial was made and overruled, and thereupon the court entered a judgment for the plaintiff. It is now here for review upon writ of error.

This court is committed to the doctrine that: 'A broker cannot recover for his services unless they were rendered at the express or implied request of his employer; that is to say, in order to recover on his part, he must have been actually employed by the person he seeks to hold liable, otherwise there would be no legal basis for his claim to compensation. This is true, even though a purchaser be found through information furnished by him.' The broker must show not only that he brought the vendor a customer with whom he dealt, but that the service was performed either at the request of the vendor or with the mutual understanding that it was not voluntarily proffered and that if was to be rewarded with reasonable compensation. City Builders' Finance Co. v. Stahl, 90 Fla. 357, 106 So. 77.

In the early part of May, 1925, the plaintiff (defendant in error) approached the defendant (plaintiff in error) with the purpose of purchasing certain lands to which the defendant held the legal or equitable title and the defendant offered to sell the lands to the plaintiff at the rate of $40 per acre. The plaintiff was at that time known by the defendant to be a real estate broker. Immediately after May 17, 1925, the plaintiff interested one Raymond in the purchase of said lands at $40 per acre, and on the 19th of May, Raymond delivered to plaintiff a check for $5,000, payable to the order of Albert E. Blackburn, Agent, and signed 'Summerland, Inc., Newman H. Raymond, Pres.' This check was indorsed by Albert E. Blackburn and deposited in the Bank of Sarasota by Blackburn on a real estate transaction. The cashier of the bank notified the defendant that the said sum of $5,000 was on deposit. On the 21st day of May, 1925, the vendor and Summerland, Inc., entered into a written contract whereby the vendor agreed to sell, and the said Summerland, Inc., agreed to purchase, the said real estate for a consideration therein expressed; and in pursuance of the terms of this contract the title to the lands was later conveyed. The said sum of $5,000.00 which had been deposited in the bank was used as a part of the initial payment for said lands. The above-recited facts are undisputed.

The plaintiff testifying in his own behalf said that when the defendant offered him the lands at $40 per acre he was unwilling to give that price, but advised the defendant that he could sell it and that the defendant gave him what he termed a 'listing' in words and figures as follows:

'Sarasota, Florida.

'May 16th, 1925.

'3281 Acres of land at $40.00 per acre.

'One-fourth (1/4) cash, balance one (1), two (2) and three (3) years at 8%. Interest payable semi-annually.

'Five thousand ($5,000.00) Dollars binder money to be put in Bank of Sarasota in escrow not later than Thursday May 21st, 1925.

'If sold--forty-five (45) days is to be given for examining title and deeds from date of presentation of deeds.

D. F. Howell.'

Plaintiff further testified that nothing was said about paying him a commission; that after he sold the property he gave the 'listing' to Jo Gill, cashier of the bank, who was to hold his commission when the deal was closed and money was taken out of escrow; that he did not try to get Howell to pay the commission prior to the institution of this action, which was on the 13th day of September, 1927, or over two years after the closing of the deal. He further testified that he told Raymond that he would divide his commission with his (Raymond's) boys; that he supposed one T. A. Albritton, an associate, would have an interest in the commission, though he had no understanding with him, and after deal was closed he told Albritton that the defendant would not pay any commission; that he did not remember a conversation with Miss Vera Roberts, defendant's secretary, on the 20th day of May, when she told him that she had a wire from the defendant to inquire of him (Blackburn) if he and Albritton were going to positively close the deal on the acreage and that he (Howell) had a buyer at a better price and also what amount he (Blackburn) wanted to release defendant from his oral contract with him (Blackburn) for the sale of the property; but that he recalled that Miss Roberts called him at his home stating that she had a message for him, and that he met her in Sarasota; that he did not remember what the message was--'something in reference to the money, whether I had or not put up the money on the deal.' If, after getting a price on the land, plaintiff communicated with the vendor prior to making the contract with the Summerland, Inc., he did not so state. He was present when the contract was made, but did not testify as to whether at this time anything was said about a commission on the sale.

Jo Gill, a witness for the plaintiff, testified that he had in his possession a listing of land signed by D. F. Howell and identified the same (which is copied in this opinion above in full); but did not know whether he got it from Blackburn or Howell; that he had a letter from Howell, dated May 23, 1925, inclosing some kind of an agreement.

M. C. Griffin, a witness for the defendant, testified that Blackburn and Albritton called at the office of Howell to get a price on the 3,200 acres of land on the Miakka river, and that Howell made them a price of $40 net; that the contract between Howell and Summerland, Inc., was signed in the office of Howell in his (Griffin's) presence and that Blackburn wanted the contract made out to Summerland, Inc.; that Howell agreed to make the contract that way but always told them that the price was the same as it was to start with, 'net to him.'

Miss Vera Roberts, a witness for the defendant, testified that in May, 1925, she was employed as stenographer for the defendant; that she recalled the transaction between Mr. Howell and Mr. Blackburn in the spring of 1925 with reference to the 3,281 acres on the Miakka river; that on May 20, 1925, the defendant was on the East Coast, and that she saw Mr. Blackburn and asked him 'what amount of money would he consider to release Mr. Howell from his verbal agreement to purchase the Miakka River property, and Mr. Blackburn said he would not consider releasing him from his verbal agreement to sell this property and that he placed $5000.00 in the bank of Sarasota with Jo Gill in escrow pending an agreement closing up the deal and that he wanted the deal to go through and he would not consider releasing him at all.' This witness further testified that the agreement between Howell and Summerland, Inc., dated May 21, 1925, was drawn in the office of the defendant, and that she prepared the written portion of it, and that it was executed at that time after the defendant informed Blackburn that he (defendant) would not pay a commission on the deal if it went through to the Summerland, Inc., because he thought Blackburn was the purchaser. Miss Roberts further testified to a paper being attached to a letter from Mr. Howell to Mr. Gill, but we are unable to say after reading the transcript what paper she had in mind; in fact, it seems that her mind was not clear as to what paper was referred to in the letter.

The defendant testified that he never 'listed' the lands with the plaintiff for sale, but did agree to sell them to him and Albritton at the price of $40 per acre net; that this agreement was verbal; that he never gave to plaintiff the paper which is copied above and referred to as a 'listing'; that he next saw Blackburn on the 21st day of May, and Blackburn...