Mitchell v. Mercer

• Citation: 101 So.2d 19
• Decision Date: 05 March 1958
• Docket Number: No. 305,305
• Parties: O. L. MITCHELL, Appellant, v. Harold E. MERCER and Mary D. Mercer, Appellees.
• Court: Florida District Court of Appeals

Page 19

101 So.2d 19

O. L. MITCHELL, Appellant, v. Harold E. MERCER and Mary D. Mercer, Appellees.

No. 305.

District Court of Appeal of Florida, Second District.

March 5, 1958.

Rehearing Denied March 19, 1958.

McEwen & Cason, Tampa, for appellant.

Cooper & Cooper, Tampa, for appellees.

KANNER, Chief Judge.

The trial judge granted motion of appellees to dismiss the second amended complaint through which appellant sought to recover a real estate broker's commission. As a result of the court's ruling, final judgment was entered in favor of appellees from which this appeal is instituted.

From the second amended complaint it appears that on June 22, 1954, appellant and his wife entered into a written agreement for deed with appellees to sell to them certain real property for $12,000 with monthly payments of $75 including six per cent interest; that payments had been made pursuant to the agreement, leaving an unpaid balance on August 1, 1955, of $10,844.67; that in such agreement appellant was obligated to convey the property to appellees, their heirs, executors, administrators or assigns in fee simple, clear of all encumbrances whatever by a good and sufficient deed upon the completion of the payments called for under the agreement; that appellees would have the right to sell their interest in the agreement to others and the purchasers or assignees would in turn be bound by such agreement.

It further appears that appellant is a registered real estate broker, and on March 29, 1955, appellees entered into a written agreement with him giving him exclusive listing of the property for sale at $15,000, the down payment open. The agreement provided for a ten per cent commission and could not be terminated for one year but could be terminated thereafter on thirty days' written notice. Appellant advertised the property for sale, and as a result of his efforts, received on August 1, 1955, a written proposal to purchase the property with $1,500 deposit, receipt being given therefor, and promise to pay an additional $2,655.33 at the date of the closing in exchange for an assignment of the agreement for deed held by appellees, leaving the balance of $10,844.67, payable to the appellant by the purchaser at the rate of $80 per month with six per cent interest, which proposal was submitted to and rejected by appellees. This proposal specified cash payment at the time of the closing in the total sum of $4,155.33, which represented all of the cash to which appellees would be entitled according to their agreement for deed and the listing agreement.

The second amended complaint concludes that the listing contract was breached, that appellant had earned his commission because he did produce a purchaser ready, able, and willing to buy the property within the limits contained in the listing contract.

The grounds of the motion to dismiss were that the second amended complaint failed to state a cause of action, was insufficient as a matter of law, and that it was not shown that appellees accepted the proposal to purchase.

The trial judge in the final judgment entered gave his reasons for his ruling:

'* * * finds that the property listing agreement, on which the plaintiff relies, leaves the terms of payment open and the Court further finds that there is no allegation in the Second Amended Complaint that the plaintiff produced a purchaser ready, able and willing to buy the property on terms either set by the sellers or acceptable to them, and that the minds of the parties did not meet as to the terms, and that therefore the Second Amended Complaint does not state a cause of action upon which relief can be granted.'

Appellant argues that the proposal to purchase obtained by him was a cash offer for appellees' entire equity in accordance with the listing agreement, with the purchaser to take over the obligation of the agreement for deed; and that appellees did not act in good faith but breached the agreement by refusing to...