Owens v. MacKenzie
| Decision Date | 10 June 1958 |
| Docket Number | No. A-104,A-104 |
| Citation | 103 So.2d 677 |
| Parties | W. O. OWENS and his wife, Marguerite L. Owens, Appellants, v. F. D. H. MacKENZIE, doing business as MacKenzie Realty, Appellee. |
| Court | Florida District Court of Appeals |
Greene, Ayres & Greene, Ocala, for appellants.
James M. Smith, Jr., Ocala, for appellee.
This is an appeal from a final judgment entered in favor of the plaintiff-appellee against the defendant-appellant for a real estate broker's commission, pursuant to summary judgment granted on the pleadings, affidavits and depositions filed in the cause. Appellants assign as error the granting of summary judgment in favor of appellee.
The Ownes, being the owners of certain real property in and around Marion County and appellants here, entered into a written agreement with a real estate promotional and sales corporation known as Previews, Inc., by which the property was listed for sale. It was agreed that Previews, Inc., would be paid a commission of ten per cent of the sale price if the property was sold through its efforts and listing. It was further agreed that, if the services of a broker were engaged to effect a sale, one-half of Preview's ten per cent commission would be paid to such broker as his fee. The plaintiff-appellee was such a broker. The agreement also contained an explanatory note to the effect that 'The prime requisite for the success of this plan lies in the fact that it is a program of continuing cooperation between you (owner) and Previews-with each of us keeping the other fully informed on developments-until a sale has been consummated.'
MacKenzie, the plaintiff-appellee, testified on deposition that the only listing his office had on appellants' property was through Previews, Inc. He had no direct listing or agreement with appellants regarding his services as a broker, but admitted that no commission was payable until the actual closing of the sale and the passing of title. As a result of his efforts as broker appellee located a purchaser, Wise, who entered into a contract of purchase with appellants, whereby Wise deposited $5,000 as 'earnest money' and agreed to purchase the lands in question for a price, and on terms agreeable to appellants. This was a standard form contract used by realtors. It was furnished and signed by appellee as broker, and contained a provision that in the event of default by Wise 'It is agreed that one-half the earnest money forfeited shall belong to the broker up to the amount of his commission.'
While the Owens were in the process of quieting their title against certain defects disclosed by an examination of the abstract, they were notified by MacKenzie that Wise was not financially able to consummate the purchase. Before any steps were taken to declare a forfeiture, MacKenzie purchased an assignment of Wise's right under the purchase contract, notified the Ownes, and commenced negotiations with other prospective purchasers; one of them being a Dr. Sandburg, to whom the land was subsequently sold at a price substantially above that agreed upon between the Owens and Wise, and resulting in a considerable profit to MacKenzie. MacKenzie's negotiations for a resale to Sandburg were concealed from the Owens. After obtaining the assignment of Wise's contract, MacKenzie instructed the Owens through their attorneys to prepare the necessary deed and purchase money mortgage in his name. At the same time MacKenzie stated that he expected to be paid the agreed broker's commission as a credit against the purchase price. Upon being informed that this credit would not be allowed since he had become the real purchaser, macKenzie altered his plan and ordered the necessary deed and mortgage prepared in Wise's name. The evidence as to whether the Wise assignment to MacKenzie was rendered inoperative by mutual consent of the parties thereto, like many of the other factors herein, is conflicting. The Owens eventually conveyed the lands to Wise who before the closing had executed and placed in escrow a deed of conveyance of the same lands to Dr. Sandburg. It was Sandburg's money that was used to close the transaction between Wise and the Owens. For his cooperation, Wise was reimbursed the amount of his earnest money deposit.
The critical question is whether there exists a genuine issue as to any material fact, thus requiring the case to be submitted...
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