Knowles v. Henderson

• Decision Date: 01 June 1945
• Citation: 22 So.2d 384,156 Fla. 31
• Parties: KNOWLES v. HENDERSON.
• Court: Florida Supreme Court

22 So.2d 384

156 Fla. 31

KNOWLES v. HENDERSON.

Florida Supreme Court

June 1, 1945

Appeal from Circuit Court, Lake County; J. C. B. Koonce judge.

Gorman & Hamlin, of Leesburg, for appellant.

Futch & Futch, of Leesburg, for appellee.

SEBRING, Justice.

Henderson, a real estate broker, sued Knowles to recover real estate commissions alleged to have been earned by Henderson in attempting to effect a sale of real property in Lake County Florida. Judgment was for the plaintiff and defendant has taken an appeal.

The plaintiff's evidence was, in substance, that the defendant, Knowles, had represented to plaintiff that he was the sole owner of certain real property in Lake County, which he wished to sell; that Knowles had authorized Henderson to sell the property for a price of $42,000 cash, Henderson to receive $4,000 as his commission for making the sale; that Henderson had found a purchaser who was ready, able and willing to buy the property upon the terms fixed by Knowles, and who, as evidence of good faith, had made a down payment of $1,000 and stood ready to pay the remainder whenever Knowles would execute the deed; that Henderson had promptly notified Knowles that a purchaser had been procured who was ready to take title to the property and pay over the purchase price; that Knowles had thereupon informed Henderson that he, Knowles owned only a one-half interest in the property and would not, and could not, convey title to the whole.

The defendant Knowles, admitted that a contract of employment to sell land had been entered into between him and Henderson but denied that the contract was as stated by plaintiff. According to Knowles' version of the transaction, Henderson had been told specifically that he, Knowles, owned only a one-half interest in the property; that it was this interest, and this interest only, that Knowles had authorized Henderson to sell for $42,000 cash.

Three points are argued by appellant as valid reasons for reversing the judgment.

It is first contended by the appellant that the verdict entered was contrary to law and the weight of the evidence and that a new trial should have been awarded by the trial court on this ground. We cannot agree with this contention. There was ample credible testimony to support a finding by the jury that the broker was employed by his principal to sell the whole interest, not a half interest in the property, and that the sale was defeated because Knowles could not convey the whole fee. Consequently, the verdict and judgment may not be set aside upon the ground urged.

The appellant next submits that, even assuming the plaintiff's testimony to be true, the judgment may not stand, for the reason that inasmuch as the plaintiff has elected to sue upon the theory that he was employed as a broker to sell the property, he cannot legally sustain his right to a real estate commission upon proof merely that he produced a purchaser ready, able and willing to buy but must go further and prove either that he actually negotiated and effected a sale of the property, or procured from his customer a binding contract of purchase for the property within the terms of his authority, leaving nothing for the principal to do on his part but to execute at the proper time the necessary transfer of the title.

The rule contended for by the appellant is sound where applicable. But we do not think the rule controls the case at bar. The law makes a distinction between the employment of a real estate broker to find or procure a purchaser for the property of another and the employment of a broker to effect a sale of such property. Under the first type of employment contract the broker to be entitled to his commissions is required only to produce a purchaser ready, able and willing to perform upon the terms fixed, leaving to the seller the actual closing of the sale. Under the second type of employment contract the broker is not entitled to his commissions until he not only has found a purchaser who is ready, able and willing to buy upon the terms fixed by the seller but has also actually effected the sale or procured from the prospective purchaser a binding contract of purchase within the terms of his authority. Wiggins v. Wilson, 55 Fla. 346, 45 So. 1011; Varn v. Pelot, 55 Fla. 357, 45 So. 1015; Elliot v. Gamble, 77 Fla. 798, 82 So. 253; Blue v. Staten, 84 Fla. 274, 93 So. 686; E. A. Strout Farm Agency v. Hollingsworth, 92 Fla. 673, 110 So. 267; Squires v. Kilgore, 92 Fla. 1001, 111 So. 113; Malever v. Livingston, 95 Fla. 272, 116 So. 15; Livingston v. Malever, 103 Fla. 200, 137 So. 113; Weida v. Bacon, 102 Fla. 628, 138 So. 32. Accordingly, a broker who has been employed to effect or comsummate a sale will not ordinarily be entitled to his commissions if he has done nothing more than produce a purchaser ready, able and willing to buy, even upon the terms authorized--for in such case he has not completed his contract.

But the general rule stated is not without exception. The weight of authority is to the effect that where a broker in good faith and in...