Mohawk, Inc. v. Cohen, 59-628

• Decision Date: 05 January 1961
• Docket Number: No. 59-628,59-628
• Citation: 125 So.2d 909
• Parties: MOHAWK, INC., a Florida corporation, Ansan, Inc., a Florida corporation, and Canoga, Inc., a Florida corporation, Appellants, v. Joe COHEN and Julius Jay Perlmutter, Appellees.
• Court: Florida District Court of Appeals

Page 909

125 So.2d 909

MOHAWK, INC., a Florida corporation, Ansan, Inc., a Florida corporation, and Canoga, Inc., a Florida corporation, Appellants, v. Joe COHEN and Julius Jay Perlmutter, Appellees.

No. 59-628.

District Court of Appeal of Florida, Third District.

Jan. 5, 1961.

Rehearing Denied Feb. 1, 1961.

Paty & Downey, West Palm Beach, for appellants.

Sibley, Grusmark, Barkdull & King, Miami Beach, for appellees.

HORTON, Chief Judge.

The defendants appeal from an adverse final judgment in the sum of $29,650, plus interest and costs. The plaintiffs, in their amended complaint, sought to recover real estate broker's commission which they alleged was due and owing to them under a written contract entered into between the parties. The contract, which was referred to in the complaint and attached thereto as an exhibit, provided, inter alia:

'Regarding the commissions earned in connection with services rendered by the undersigned, as brokers, in the matter of negotiating a lease on your behalf, * * *:

'You are to pay the total amount of $137,600 as commission for these services.

'It is understood and agreed that the commissions are to be paid over a period of ten years in installments of $13,750 per year as and when the rent is collected by you as lessor under the terms of the lease; it being understood that the first payment shall be made at the time of the closing.

'In accordance with the understanding and agreement of the undersigned parties, this shall act as your authorization to disburse the above stated commission payments in the following manner:

'50% of the amount due in each event shall be paid to the order of Julius Jay Perlmutter Associates, Inc. and the remaining

'50% to the order of Joe Cohen.

'It is specifically understood and agreed that any commissions due or any commissions remaining unpaid under this lease, such amount of commissions due or remaining unpaid shall automatically become due and payable in full, in the event of the sale by you, your this lease, such amounts of commissions leased properties.'

The amended complaint alleged that the defendants had paid to the plaintiffs the sum of $108,000 pursuant to the contract and that defendants voluntarily terminated the leases prior to their expiration dates, and since such terminations, have failed and refused to make the remaining commission payments in the total amount of $29,500. By their respective answers, the defendants denied liability under the contract and further denied that they had voluntarily terminated the leases in question. The trial court found for the plaintiffs and defendants have appealed.

Although the final judgment contains no finding of fact upon which the trial court based its decision, we feel that it is necessary for a determination of this appeal to observe that the record contains no evidence upon which the trial court could have found that the defendants voluntarily terminated the leases in question. Further, the record contains a stipulation of fact entered into between the parties which contains the following:

'The leases then existing between Seaboard Hotel Operating Corporation and the defendant corporations were terminated by Seaboard Hotel Operating Corporation (the lessee) on February 20, 1958. Said termination was effected through verbal notice given by the President and Secretary of Seaboard Hotel Operating Corporation to Mohawk, Inc., and by written notice, copy of which which is attached...