Mcgehee Lumber Co. v. Tomlinson
Decision Date | 17 December 1913 |
Citation | 63 So. 919,66 Fla. 536 |
Parties | McGEHEE LUMBER CO. v. TOMLINSON. |
Court | Florida Supreme Court |
Error to Circuit Court, Marion County; W. S. Bullock, Judge.
Action by E. H. Tomlinson against the McGehee Lumber Company, a corporation. Judgment for plaintiff, and defendant brings error. Affirmed.
Syllabus by the Court
Prima facie the president of a private corporation has the authority to employ an agent to effect a sale of its lands and if the corporation, in a suit against it by such agent to recover his commissions for effecting such sale under said employment, desires to show that its president had no authority to employ him for that purpose, it is defensive matter within its peculiar knowledge that it must prove, if it desires advantage therefrom.
If a real estate broker who has earned his entire commission on the sale of lands, afterwards, voluntarily and without consideration, agrees to accept his commissions in installments as and when deferred payments of purchase price were made by the purchasers, provided such installments of commissions were promptly paid at the times when the deferred payments of the purchase money were made, he is absolved from such voluntary agreement to accept his commissions in installments upon the default of the vendors to pay him an installment of such commission promptly when a deferred payment of the purchase money is made, and particularly is he absolved from such voluntary postponement of his commissions if the vendor absolutely denies all obligation to pay him any commission whatsoever, and flatly refuses to pay him any such commission; and he may then sue for and recover his whole commissions earned, regardless of any agreement between the vendor and purchaser as to deferred payment of the purchase price.
If on the whole record a case has been fully and fairly tried, and on the pleadings and proofs has resulted in a verdict and judgment that meets fully the demands of justice between the parties, technical errors in instructions given, and in refusals to give instructions requested, will be disregarded if the result of the trial could not have been materially affected had such technical errors not been committed.
COUNSEL H. M. Hampton, of Ocala, for plaintiff in error.
Marks, Marks & Holt, of Jacksonville, for defendant in error.
The defendant in error, hereinafter referred to as the plaintiff, sued the plaintiff in error, hereinafter referred to as the defendant, in the circuit court of Marion county, in an action of assumpsit, for the recovery of commissions alleged to be due him as a real estate broker for the sale by him of a large tract of land owned by the defendant, and recovered a verdict from the jury for the sum of $3,370.38, and $1,078.52 as interest, making a total of $4,448.90 in the verdict. Although no notice is taken of it here in the briefs or arguments of either side, we notice that in the judgment sent up in the transcript of record there appears to be an inadvertent mistake in the statement of the amount of the interest due to the plaintiff; the verdict of the jury returning it as being $1,078.52, and the judgment entered thereon specifying the interest to be only $178.52, a discrepancy between the verdict and judgment entered thereon of $900. This judgment the defendant below brings here for review by writ of error.
The declaration of the plaintiff contains a count upon a special contract with the plaintiff employing him as a real estate broker to sell said lands for the defendant corporation upon an agreed commission of 5 per centum of the amount for which it was sold, and also contained the common counts for work and labor done, and for money received by the defendant for the use of the plaintiff, and for money found to be due upon an account stated between them, and for interest on divers sums of money foreborne by the plaintiff to the defendant at its request. To the common counts of the declaration the defendant pleaded non assumpsit, and never was indebted as alleged. To the special count the defendant pleaded that it never promised as alleged; that neither the defendant nor any one authorized by it ever entered into a contract or agreement with plaintiff employing him to sell the lands mentioned in the declaration, or listed the same for sale with the plaintiff as a real estate broker as alleged; and that the alleged agreement or contract alleged to have been made with the plaintiff by this defendant listing the said lands for sale as alleged was not made by this defendant or by any one by it duly authorized; and a denial that the plaintiff sold the lands as alleged for and on behalf of defendant. On these pleas the plaintiff joined issue, and the case was tried on the issues thus made.
There are 24 separate assignments of error, some of which are very properly abandoned here; the rest of the assignments predicated upon refusals of the trial judge to give requested instructions, and upon various charges given to the jury by the court, and upon the admission over defendant's objections of various letters and other documentary evidence, and upon the denial of the defendant's motion for new trial chiefly upon the ground that the verdict was excessive in amount, we will not undertake to treat seriatim or in detail, but will...
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