Moss v. Sperry

• Decision Date: 17 October 1939
• Citation: 191 So. 531,140 Fla. 301
• Parties: MOSS v. SPERRY et al.
• Court: Florida Supreme Court

191 So. 531

140 Fla. 301

MOSS v. SPERRY et al.

Florida Supreme Court, Division B.

October 17, 1939

Suit in equity by M. J. Moss, Jr., against Mamie J. Sperry and others to enforce an equitable lien against realty, proceeds of sale thereof, and purchaser's interest therein, for a real estate agent's commission. From orders dismissing the original and amended bills of complaint, plaintiff appeals.

Reversed and remanded. Appeal from Circuit Court, Orange County; Frank A. Smith, judge.

COUNSEL

George P. Garrett, of Orlando, for appellant.

W. A Pattishall and Hugh Akerman, both of Orlando, for appellees.

OPINION

BROWN Justice.

The appeal in this case was taken from two orders of the Circuit Court, one dismissing the original bill of complaint, and the other dismissing the amended bill. This suit was brought by a real estate agent to enforce against the real property belonging to the vendors and the proceeds of the sale thereof and the interest of the purchaser in said property an equitable lien for his commission for services rendered the vendors in connection with the sale of the property.

The amended bill alleged that the defendant owners by and through their agent Sperry renewed a listing with the plaintiff as a broker of certain described property in Orange County Florida. The terms of the listing were that the broker was to find a buyer, ready, able and willing to buy said property for the total sum of $15,000, a down payment of $5,000 cash and the terms of payment of the balance of the purchase price to be arranged to suit the purchaser, allowing up to five years to pay off the balance, interest to be paid at the rate of 6 per cent per annum, and the plaintiff to be paid a commission of 10 per cent of the sales price out of the first monies paid by the purchaser on the purchase price. Thereafter, the plaintiff advertised said property for sale and through his efforts found one Mark Dodd, who was made a defendant in the suit, as a prospect for the purchase of said property.

It is further alleged that the said Mark Dodd, after receiving from the plaintiff all the information he demanded with reference to the said property, including the name of the non-resident agent of the owners and the name of the local agent of the owners, ignored the plaintiff and dealt directly with the non-resident agent of the owners. That before any contract was made or title passed, the plaintiff notified the said defendant owners by and through their nonresident agent and their agent Sperry, and their local Agent McPherson, that he had produced the said Mark Dodd as a prospective purchaser and demanded that the defendant owners protect him for his stipulated broker's commission in accordance with the terms of said listing. That thereafter said defendant owners entered into a valid and now subsisting written and enforceable contract with Mark Dodd to sell said real property to him at a price of $11,500 cash, and that Dodd paid a valuable consideration, earnest money, to said defendant owners for the contract and is not in default under the contract. That plaintiff's commission on said purchase price is the sum of $1,150. That the legal title has not yet passed from the defendant owners to said purchaser, and that said purchaser had not paid the owners any part of the purchase price save the earnest-money down payment, which was a small sum, the specific amount of which was not known to plaintiff. That said owners now disclaim any liability to the plaintiff for the payment of plaintiff's earned brokers commission.

It is further alleged that Dodd knew at the time he consulted plaintiff that plaintiff was a registered real estate broker having the property listed with him and would be entitled to a 10 per cent broker's fee upon a sale of the property from the purchase price thereof, and that it was the intention of Dodd, in dealing directly with the owners and ignoring plaintiff, in which purpose and intention the owners joined, to avoid the necessity on the part of the owners, in case of a sale, of paying the the plaintiff's commission; that this purpose originated in the desire of the purchaser to discount the purchase price by the amount that would be payable to plaintiff if the deal were made by the purchaser directly through the plaintiff with the owner. That it was also the purpose and intention of the owners, in dealing with said purchaser directly, and not referring him to the plaintiff, after they knew the plaintiff had procured said purchaser, in which purpose and intention the purchaser joined, to attempt to evade and avoid the necessity of paying plaintiff his agreed commission of 10 per cent of the sale price, which the defendant owners had obligated themselves to pay him in case he procured a purchaser.

It is further alleged that the defendant owners are non-residents of the State of Florida; that there is no person in the State service of process upon whom would bind the owners in any suit at law or in equity, and that plaintiff cannot recover a valid judgment at law against the defendant owners because he cannot make personal service of process upon them. That said owners have no other property in Orange County or in the State of Florida out of which plaintiff can enforce his claim for commission if the said real property and the proceeds of the sale thereof to Dodd are acquitted of liability to the plaintiff for said commission. That the defendant owners and defendant purchaser knowingly combined, conspired and colluded to consummate said sale in such a manner as to evade, and for the agreed purpose of evading, the payment of plaintiff's commission, and that to permit them to consummate such a deal without paying plaintiff his earned commission would be to permit said defendants to consummate a fraud upon plaintiff.

The amended bill also alleges that the defendant owners and defendant Dodd each have an interest in said described real property; that the defendant owners as vendors hold the title in trust for the purchaser until he pays the purchase price, and the purchaser holds an equitable title subject to the payment of the purchase money; that the owners and Dodd each have an interest in the unpaid purchase money which Dodd contracted to pay the owners; and that therefore the said several interests of the defendant owners and Mark Dodd, both in the purchase price and in the land, are in equity subject to the claim of plaintiff on the real property involved and the funds arising out of the sale thereof, to the extent of his commission of $1,150.

Plaintiff sought a decree of the court declaring such equitable lien in his favor on the proceeds of the sale to the extent of plaintiff's interest therein, and requiring the defendants to secure to the plaintiff his interest in the said proceeds and requiring defendant Dodd to pay plaintiff his one-tenth interest in said proceeds, namely $1,150, or in the alternative a decree that the several interests of said several defendants, both the owners and said Dodd, in the property, out of the sale of which said proceeds are derivable, may be subject to an equitable lien in favor of plaintiff to the extent of his interest in the lands, or the proceeds of the sale thereof, and that the court enforce such lien.

Then follow the allegations, mostly argumentative in nature, to the effect that the equitable basis for the enforcement of such a lien consists in the fraud wherein the owners and the purchaser conspired and colluded to make such sale in such a manner as to defraud the plaintiff, and that the remedy of attachment is not available to plaintiff because the beneficial ownership of the property is in Dodd and the legal title is in the owners in trust for Dodd as security for the payment of the purchase price, and that plaintiff has no right against Dodd which can be enforced by attachment. That plaintiff does have a right against the defendant owners which can be enforced by attachment, but that they do not own a beneficial interest therein, or any title to any other property subject to attachment within the jurisdiction. That the remedy of garnishment is not available to plaintiff because if he has such remedy it is only against the owners by garnishment writ served on Dodd, and that although Dodd has agreed to pay the owners under his purchase contract, he does not owe defendant owners until they deliver marketable title to the lands, which they have not done and cannot do while this suit is pending, and that defendant Dodd has not now any goods, money, chattels or effects of defendant owners in his possession or control subject to writ of garnishment.

We have only reviewed the amended bill, because it presented the plaintiff's case more strongly than the original bill. The defendant owners, and also the defendant Dodd, each filed motions to dismiss the amended bill upon the grounds that there was no equity therein, that plaintiff had a complete and adequate remedy at law, that a real estate broker is not entitled to a lien for his commission upon property sold by him or listed with him, and that the defendant Dodd is an improper party. The Circuit Court granted both motions and dismissed the amended bill. Hence this appeal.

Counsel for appellant cites Zirkle v. Hendon, 180 Ala. 209 60 So. 834; Hendon v. Zirkle, 201 Ala. 171, 77 So. 697 (which latter case was the second appearance of and followed the case first cited); Moss v. Thomas, 218 Ala. 141, 117 So. 648, 58 A.L.R. 1495, which case cites the case of Zirkle v. Hendon, supra, with approval, though the factual situation in that case was different; Francis v. Wells, 2 Colo. 660; Ann. in 58 A.L.R. 1497; Baker v. Cooper, 201 A.D. 639, 194 N.Y.S. 726; Davis v. Huff, Tex.Civ.App., 288 S.W. 267; also Ann. in 47...