Planck v. Traders Diversified, Inc.
| Decision Date | 13 August 1980 |
| Docket Number | No. 77-1132,77-1132 |
| Parties | Sterling J. PLANCK, Sr., and Southport Boat Storage and Sales, Inc., a Florida Corporation, Appellants, v. TRADERS DIVERSIFIED, INC., a Florida Corporation, Appellee. |
| Court | Florida District Court of Appeals |
Wilton L. Strickland and Carey M. Fischer of Ferrero, Middlebrooks & Strickland, Fort Lauderdale, for appellants.
Richard W. Wasserman, Miami Beach, for appellee.
This is an appeal from a judgment in favor of a broker and against a seller of real estate. The question on appeal is whether the broker had an exclusive listing agreement entitling him to a commission no matter who sold the property to whom during the time period of the listing agreement.
The listing agreement gave the broker one month from this date (and thereafter until this agreement is revoked by ten days' written notice delivered to you), the sole right and authority to find a purchaser for the above described property at the following price and terms, or at any other price and terms acceptable to me:
Price:$895,000.00cents Terms:$295,000.00cents cash, and Purchase money Mort. of $600,000.00cents or all cash. Mort. will be held at a rate of 9%, paymt. of $6000.00 per. mo.
# # #This Listing Agreement pertains only to the above named property to be offered for sale to Mr. Phillip Slack of Chicago Ill.
The portion of the agreement which says "# # # This Listing Agreement pertains only to the above named property to be offered for sale to Mr. Phillip Slack of Chicago, Ill." is typed in, as are some other portions of this apparently rather standard printed agreement. This typed part of the agreement limits the right of the broker to negotiate a sale to Phillip Slack. However, in the first part of the agreement, which is part of the printed form, the agreement does not limit the broker's authority and would give the broker the right to collect a commission no matter who sold the property to whom. Thus there is a conflict in the agreement as to the extent of the broker's right. It has been generally held that typed portions of a contract which are at variance or in conflict with printed provisions take precedence and are controlling. MacIntyre v. Green's Pool Service, Inc., 347 So.2d 1081 (Fla.3d DCA 1977).
The dispute arose in the case because the seller, Planck, sold the property to someone other than Slack during the thirty day period of the listing agreement. Appellee filed suit for a commission on account of that sale. The issue went to trial and a jury returned a verdict for the broker which verdict was reduced to judgment. Appellant urges the trial court erred in denying his motion for directed verdict and erred in entering the judgment. We agree and reverse. In interpreting the agreement, we have applied the standard relating to typed versus printed provisions in a contract. MacIntyre v. Green's Pool Service, Inc., 347 So.2d 1081 (Fla.3d DCA 1977). We have also considered the law which says ambiguities in a contract are more strictly construed against the drafter. MacIntyre v. Green's Pool Service, Inc., 347 So.2d 1081 (Fla.3d DCA 1977); American Agronomics Corporation v. Ross, 309 So.2d 582 (Fla.3d DCA 1975). This rule is especially true when the drafter stands in a position of trust, or greater professional or business knowledge, such as a real estate broker. Falovitch v. Adrienne Realty, Inc., 345 So.2d 839 (Fla.3d DCA 1977). The broker in this case drafted the listing agreement so we interpret it in favor of the client/appellant. This leads us to the decision that the agreement limited the broker to the right to collect a commission only if he secured the offer to purchase from Slack within the thirty days and before the appellant sold the property to anyone else. The evidence is clear the broker did not secure the ultimate purchaser, did not produce a contract offer from Slack before the sale to the ultimate purchaser and is entitled to no commission. See also Wilkins v. W. B. Tilton Real Estate and Insurance, Inc., 257 So.2d 573 (Fla. 4th DCA 1971).
REVERSED.
The final judgment based upon a jury verdict awarding appellee a real estate brokerage commission should, in my judgment, be affirmed.
The evidence reflects that appellant Planck entered into a listing agreement with appellee Traders Diversified, authorizing Traders to sell appellant's property for a period of thirty days upon certain terms and conditions. The contract provided that appellee was only authorized to sell the property to a specific person, Phillip Slack. However, the contract further provided that a commission would be due appellee whether the purchaser was secured by appellee or Planck. The pertinent portions of said contract are reproduced herein for the sake of clarity:
EXCLUSIVE LISTING AGREEMENT# # #
Date:May 18, 1976
1 In consideration of your agreement to list and to use your efforts to secure a
purchaser for the property described as
---
Southport Marina, 1335 S.E. 16th Street Fort LauderdaleFLa
---
---
I herby give you for a period of one month from this date (and thereafter until this agreement is revoked by ten days' written notice delivered to you), the sole right and authority to find a purchaser for the above described property at the following price and terms, or at any other price and terms acceptable to me:
Price:$895,000.00cents Terms:$295,000.00cents cash, and Purchase money Mort. of $600,000.00cents or all cash. Mort. will be held at a rate of 9%, paymt. of $6000.00 per. mo.
# # #This Listing Agreement pertains only to the above named property to be offered for sale to Mr. Phillip Slack of Chicago Ill.
Interest on encumbrances, taxes, insurance and rents shall be adjusted prorata at date of closing. Improvement liens are to be paid by me.
* * *
* * *
3. For finding a purchaser for the above property:
A. I agree to pay you a commission of --SIX--% of the sales price.
B. The commission is to be paid whether the purchaser be sesured by you or me, or by any other person, at the price and upon the terms mentioned or at any other price or terms acceptable to me; or if the property is afterwards sold within three (3) months from the termination of this agency, to a purchaser to whom it was submitted by you, or a co-operating broker during the continuance of the agency, and whose name has been disclosed to me.
The contract in question, prepared by Traders Diversified is a form contract which contained...
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