South Florida Farms Co. v. Stevenson

• Decision Date: 05 May 1922
• Citation: 84 Fla. 235,93 So. 247
• Parties: SOUTH FLORIDA FARMS CO. v. STEVENSON.
• Court: Florida Supreme Court

93 So. 247

84 Fla. 235

SOUTH FLORIDA FARMS CO. v. STEVENSON.

Florida Supreme Court

May 5, 1922

On Rehearing, July 7, 1922.

Remittitur Authorized August 16, 1922.

Error to Circuit Court, De Soto County; George W. Whitehurst Judge.

Action by the South Florida Farms Company, a corporation, against D W. Stevenson. From a judgment for plaintiff, defendant brings error.

Affirmed on condition of remittitur; otherwise, reversed, and new trial ordered.

Browne C.J., and Taylor, J., dissenting.

On Rehearing.

Syllabus by the Court

SYLLABUS

Under exclusive contract for sale of lands, broker may recover commissions only for lands sold by himself. In an action where the declaration alleges that the plaintiff had an exclusive contract for the sale of defendant's lands, and it appears that some of the lands were sold by the plaintiff, and other portions of the lands were sold by the defendant, and the plaintiff had no part in such sales, the plaintiff may recover stipulated commissions for lands sold by him, but not for lands sold by the defendant, in which latter sales the plaintiff had no part.

Court may authorize remittitur of excessive judgment as alternative for reversal. Where liability is shown, and verdict and judgment are rendered for an excessive amount, and the court can satisfactorily determine from the record the amount of the excess, or the amount properly recoverable, whether in tort or contract, the court may authorize a remittitur of the excess as an alternative for a reversal.

Remittitur permitted in ex contractu action on severable items, where liability shown as to some and not to others. If an action is ex contractu on items that are severable, and on appropriate issues liability is shown as to some and not to other items, a remittitur may be permitted.

Judgment for excessive damages may be affirmed, on condition that plaintiff remit excess; remittitur not awarded, where liability of defendant not clearly shown; directing remittitur alternative for reversal not usurpation of functions of jury or denial of jury trial. Where the judgment, or the verdict on which the judgment is based, is in excess of the damages proved, and the evidence clearly shows the amount for which judgment should have been rendered, the judgment may be affirmed, on condition that plaintiff remit the excessive part of his recovery. But, where liability of the defendant is not clearly shown, a remittitur will not be awarded. In directing that a remittitur be entered for a stated amount upon a verdict awarding damages, and that upon failure to do so a new trial be granted, the court, whether trial or appellate, does not usurp the functions of a jury, or deny to either party a right to a jury trial.

Remittitur proper as to portion of claim not duly proven or shown untenable. Section 4 of the Declaration of Rights of the Constitution provides that 'right and justice shall be administered without sale, denial or delay'; and when by due course of law a severable portion of a claim or demand has been proven under such issues, that could not have prejudiced the defendant as to the severable portion of the claim or demand that has been clearly and fairly established, such established portion should be enforced by appropriate procedure of remittitur or otherwise, in order that 'right and justice shall be administered without * * * delay,' when the remainder of the plaintiff's claim or demand is not duly proven, or is shown to be untenable.

COUNSEL

Leitner & Leitner, of Arcadia, Mabry, Reaves & Carlton, of Tampa, and Myers & Myers, of Tallahassee, for plaintiff in error.

Treadwell & Treadwell, of Arcadia, and E. J. L'Engle and J. W. Shands, both of Jacksonville, for defendant in error.

OPINION

WHITFIELD, J.

In an action on a contract the plaintiff was awarded a verdict and judgment for the full amount of his claim, and the defendant took writ of error.

The contract consists in two letters as follows:

'Copy.

'Moore Haven, Florida, July 10, 1919.

'Mr. D. W. Stevenson, Moore Haven--Dear Mr. Stevenson: It is my understanding of our arrangement of to-day that at the earliest convenient moment, surely by August 1st next, you are to assume the position of manager of this company, in connection with your present engagements elsewhere; that your salary for this purpose shall be $250 per month; that your duties shall consist of the entire control of all the business of the company of every character in Moore Haven and the Moore Haven office, together with all the employees, but excluding the company books, that are to be continued with the present arrangement in Miami. That you are to make reports of progress at reasonable intervals to the company president and to no one else. That the moving consideration for this arrangement is not only the management of the company routine business, but also the disposal of all the company holdings outside of the town of Moore Haven, which consist of about $52,000 acres of land in Lee county and about 30,000 unsold acres in De Soto county. It is agreed to by us that we will accept an average price of $12 net per acre for the Lee county land, and $21 net for the De Soto county land, no deduction or commissions off to any one but yourself. That if within two years from August 1, 1919, this entire unsold acreage is sold to net the above figures to this company, and on terms acceptable to us, you are to receive from us a commission of 5 per cent. If all the land in either, but not both, counties is sold, your commission shall be 2 1/2 per cent. This arrangement to hold good on any excess price which may be obtained, the prices mentioned herein being the absolute minimum.

'If neither of the county holdings are disposed of in full, the entire commission falls, and the salary mentioned above is to be your full compensation. In any event the commission is to be figured on what is sold after August 1, 1919, and not to apply on anything sold prior to that date, nor to any personal property, such as machinery, etc., sold, nor to any land or buildings in the town site of Moore Haven.

'If this accords with your understanding of the matter will you please write me to that effect.

'With best wishes,

_________________________________ 'Very truly yours,

_________________________________ 'South Florida Farms Co.,

_________________________________ '[Signed] By Clarence M. Busch, Pres.'

'Moore Haven, Florida. July 12, 1919.

'Clarence M. Busch, President, South Florida Farms Company, Miami, Florida--Dear Sir: Replying to your letter of July 10th, outlining an agreement between us covering the basis of my connection with your company, will say that it is in accord with my understanding, therefore I am able to concur therein.

_________________________________ 'Yours very truly,

_________________________________ '[Signed] D. W. Stevenson, Cashier.'

By the terms of the letter contract the 'moving consideration' for the employment of the plaintiff was 'not only the management of the company routine business, but also the disposal of all' the specified lands of the defendant company, as stated in the letter of its president.

The monthly salary agreed to be paid the plaintiff was compensation for his management of the defendant company's routine business in Moore Haven. Such management gave the plaintiff the use of the defendant company's facilities in making sales of the lands as contemplated, and the separate compensation for sales, when made as specified, afforded incentive for alertness and activity by the plaintiff. The agreement clearly contemplated the payment of commissions to the plaintiff only upon sales of lands actually made through the plaintiff's activities. This did not deprive the defendant of the right to sell its own land, or entitle the plaintiff to compensation for sales made by the defendant company, in which sales the plaintiff had no part. The plaintiff's employment began in July or August, and was terminated in the following December. The action is brought, not for a breach of the contract of employment, but for commissions on sales of lands, including sales in which the plaintiff did not participate, as well as those made by him.

The declaration alleges that under the plaintiff's employment he 'had an exclusive contract for the sale of' defendant's lands, but that defendant sold part of the land while plaintiff sold the other portion, except 800 acres, which he could have sold to the same purchasers at $25 per acre, had not defendant reserved the 800 acres. Plaintiff claimed a commission on all the sales of all the lands referred to in the letter contract, though he testified that he had no part in selling the lands sold by the defendant, comprising all the lands in Lee county and 6,500 acres in De Soto county, but did sell the other lands at $25 per acre, and could have sold at the same price 800 acres that were reserved from the sale made by plaintiff, and afterwards sold by the defendant. As the alleged exclusive right of the plaintiff to sell did not deprive the defendant of its inherent right to sell its own land (Wiggins v. Wilson, 55 Fla. 346, 45 So. 1011), and as the plaintiff had no part in the sales made by the defendant, the plaintiff is entitled only to commissions on sales he made, including the 800 acres he could have sold, with the other sales made by him at $25 per acre, the commissions, to be at the rate of 5 per cent., since the entire acreage in the two counties was 'sold to net the above figures to the company' as stated in the employment contract. This view is sustained by a consideration of the entire record.

Reversed.

ELLIS, J., concurs.

WEST J., specially concurs in decision.

BROWNE, C.J., and TAYLOR, J., dissent.

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