Mangus v. Present, 40013

• Decision Date: 07 July 1961
• Docket Number: No. 40013,40013
• Citation: 135 So.2d 417
• Parties: Leslie J. MANGUS, Petitioner, v. Art PRESENT, Trading and doing business as Art Present Realty, Respondent.
• Court: Florida Supreme Court

Page 417

135 So.2d 417

Leslie J. MANGUS, Petitioner, v. Art PRESENT, Trading and doing business as Art Present Realty, Respondent.

No. 40013.

Supreme Court of Florida.

July 7, 1961.

Rehearing Denied Sept. 7, 1961.

Hylan H. Kout, Miami Beach, for petitioner.

Snyder, Young & Stern, North Miami Beach, for respondent.

PER CURIAM.

Leslie Mangus, petitioner, will hereinafter be referred to as Mangus; Art Present, trading and doing business as Art Present Realty, respondent, will hereinafter be referred to as Art Present. Mangus and Art Present were both in the real estate business. Mangus was plaintiff below and Art Present was defendant below. Mangus had a listing on certain real estate which was not exclusive. Mangus and Art Present entered into written contract whereby Art Present agreed to produce a purchaser for the lands described in the listing of Mangus and split commission [five percent] fifty-fifty. After executing the contract, Art Present produced a buyer and sold a portion of the said real estate, receiving a real estate commission of $5,500. Mangus demanded payment of one-half said commission but was refused payment, whereupon Mangus brought suit for damages against Art Present in the Civil Court of Record of Dade County. Art Present admitted the execution of the contract with Mangus and that he, Art Present, had received a commission for selling a portion of the real estate in the sum of $5,500, but interposed certain defenses to payment, the principal one of which was failure of consideration for the contract, in that Mangus did not have an exclusive listing, consequently, alleged Art Present, the contract was unenforceable. One motion of Mangus the trial court struck Art Present's defenses. The case went to trial on the single issue of whether Mangus had a valid listing. The jury found for Mangus and awarded damages in the sum of $2,750, or one-half the commission secured by Art Present for making the sale. Art Present appealed to the District Court of Appeal which reversed and remanded the cause for a new trial. Petition for rehearing was seasonably proffered and denied.

Pursuant to Section 4, Article V, of the Constitution, F.S.A., and Rule 4.5, subd. c, Florida Appellate Rules, 31 F.S.A., Mangus seeks by certiorari to have reviewed by this court the decision of the District Court of Appeal, Third District, dated July 21, 1960, on the theory that it is in conflict with prior decisions of this court on the same point of law.

Mangus contends, in other words, that when the district court of appeal ruled that his [Mangus] contract with Art Present to sell the lands in question was bad for want of consideration, in that he [Mangus] did not have an exclusive listing, error was committed as revealed by prior decisions of this court on the same point of law.

To support his alleged conflict on the same point of law Mangus relies on Southern Life Insurance & Trust Co. v. Cole, 4 Fla. 359; George W. Robinson & Co. v. Hyer Bros., 35 Fla. 544, 17 So. 745; Silva v. Robinson, 115 Fla. 830, 156 So. 280; Jones v. McCallum, 21 Fla. 392; Henderson v. Kendrick, 82 Fla. 110, 89 So. 635; Tampa Northern R. Co. v. City of Tampa, 104 Fla. 481, 140 So. 311, 141 So. 298, and Rodriguez v. Powell, 127 Fla. 56, 172 So. 849.

These cases have been examined but omitting Henderson v. Kendrick we do not think they show such a conflict on the same point of law as would authorize granting certiorari. They point out different aspects of consideration as well as what constitutes consideration to support a contract. Some of these cases come up with the rule that 'consideration may consist of either a benefit to the promisor or a detriment to the promisee.' Also a 'consideration emanating from some injury or inconvenience to the one party, or from some benefit to the other party, is a valuable consideration.'

In holding that if the listing held by Mangus was not exclusive 'then the contract would be without consideration,' the district court of appeal was in error. True, such a provision may be written in a sales contract by agreement of the parties but it was not done in the one under consideration and there is no such rule of law known to real estate transactions in this state. The trade [dealing in real estate] recognizes no such rule generally. This was the error on which the trial court was reversed, the damages involved having been awarded by a jury.

As pointed out above, to constitute a valid consideration there must be a benefit to the promisor or a detriment to the promisee. In holding as it did, the district court of appeal determined only that there was no detriment to the promisee, whether there was a benefit to the promisor the district court of appeal apparently did not consider. The question [benefit to the promisor], however, was a jury question.

In Henderson v. Kendrick, supra [82 Fla. 110, 89 So. 637], we held, 'The detriment which will constitute a consideration for a promise need not be an actual loss to the promisee. It is sufficient if he does something that he is not legally bound to do.' Mangus was not bound to furnish Art Present the listing. Under the holding of the district court, sale of the land by Art Present deprived Mangus of a commission which otherwise he could have secured, though Art Present got the listing which he contracted for but Mangus got nothing.

In Sunad, Inc. v. City of Sarasota, Fla.1960, 122 So.2d 611, 613, ...