Hutchins & Co. v. Sherman

• Decision Date: 03 August 1921
• Citation: 89 So. 430,82 Fla. 167
• Parties: HUTCHINS & CO. v. SHERMAN.
• Court: Florida Supreme Court

89 So. 430

82 Fla. 167

HUTCHINS & CO. v. SHERMAN.

Florida Supreme Court

August 3, 1921

Error to Circuit Court, Orange County; C. O. Andrews, Judge.

Action by Hutchins & Co. against F. E. Sherman. There was a judgment for defendant, and plaintiff brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Who had procured purchaser entitled to commission, though sale was defeated for fault of principal. Where a real estate broker procures a customer willing, ready, and able to purchase property offered for sale according to the terms of the offer, and the transaction is defeated on account of some fault of the principal, the broker is entitled to his commission, although the sale is not consummated.

Absolute accuracy of expression is not necessary in instructions. Absolute precision and technical nicety of expression in instruction to juries are not required.

Instructions containing correct declarations of the legal principles involved and presenting the issues are sufficient. If instructions to juries contain correct declarations of the legal principles involved, and fairly and reasonably present the issues made by the pleadings and presented by the evidence and the law applicable thereto, they are sufficient.

Refusal of requests covered is not error. It is not error for the court to refuse to give requested instructions, which are substantially covered by charges which are given.

COUNSEL

Dickinson & Dickinson, of Orlando, for plaintiff in error.

Graham & Sherman, of Orlando, for defendant in error.

OPINION

WEST J.

By this action the plaintiff, plaintiff in error here, seeks to recover commissions as compensation agreed to be paid to it by defendant for procuring a purchaser willing, ready, and able to buy certain real estate, together with household furnishings and farm implements on the place offered for sale by defendant. Upon a trial the verdict was for defendant. To review the judgment entered, plaintiff took writ of error.

The principal contention is that the court erred in giving certain instructions to the jury and refusing to give other instructions requested by plaintiff.

It appears that plaintiff's customer, the purchaser, had inspected the property proposed to be sold, and that the purchase price and terms of sale had been agreed upon; but when the purchaser went out to consummate the transaction he found, so it is said, that the owner had removed or stored and was attempting to reserve and withhold from the sale certain property originally included in the offer to sell whereupon the purchaser refused to accept the property tendered, and declined further negotiations with respect to its purchase. This was denied by the owner, thus presenting an issue of fact.

The authorities uniformly hold to the effect that, where a broker procures a customer willing, ready, and able to purchase property offered for sale according to the terms of the offer, and the transaction is defeated on account of some fault of the principal, the broker is entitled to his commission, although the transaction is not consummated. 9 C.J. 623; Camp. Lbr. Co. et al. v. Tedder, 78 Fla. 183, 82 So. 865; Dotson v. Milliken, 209 U.S. 237, 28 S.Ct. 489, 52 L.Ed. 768; Schweid v. Storandt, 157 A.D. 855, 143 N.Y.S. 161; Beamer v. Stuber, 164 Iowa, 309, 145 N.W. 936; Church v. Dunham, 14 Idaho, 776, 96 P. 203; Smith v. Adelberg, 72 Wash. 434, 130 P. 494; Realty Bonds & Finance Co. v. Point Richmond Canal & Land Co., 171 Cal. 238, 152 P. 433; Richardson v. Olanthe Milling, etc., Co., 167 Ala. 411, 52 So. 659, 140 Am. St. Rep. 45.

The charge requested and refused is as follows:

'The court charges you that if you find from a preponderance of the evidence in this case that when the proposed purchaser, J. R. Squires, went out to take an inventory and close up the deal, that articles which were to go with the place and had been exhibited as going with the place had been removed or reserved, it was not incumbent upon the proposed purchaser to make objection to the defendant; but he had a perfect right to make his objection through the agent, or broker, and decline to accept the place, if not tendered to him as agreed upon, and such refusal, based on such matter, would be justified, and would be no grounds as a matter of law to bar the plaintiff from recovering its commission, if you find from a preponderance of the evidence that plaintiff carried out its part of the agreement in the production of the customer.'

The pertinent portion of the charge given by the court upon this point is as follows:

'If you find from the evidence in this case that the purchaser J. R. Squires, was produced, that he inspected the property prior to the coming to close the deal, and that at the time he appeared at the property to inspect it to close the deal that some of the property had been packed up, put into the closet, or put in the storage room, and you find from the evidence that such property was personal effects, and that Mr. Squires refused to take the property which constituted such...