Estes v. Moylan

• Decision Date: 06 February 1957
• Parties: Sophronia I. ESTES, Appellant, v. E. B. MOYLAN, Jr., Appellee.
• Court: Florida Supreme Court

Page 362

94 So.2d 362

Sophronia I. ESTES, Appellant, v. E. B. MOYLAN, Jr., Appellee.

Supreme Court of Florida, En Banc.

Feb. 6, 1957.

Rehearing Denied May 2, 1957.

R. P. Terry, Miami, for appellant.

Anderson & Nadeau, Miami, for appellee.

ROBERTS, Justice.

This is an appeal by defendant from a summary judgment entered in favor of plaintiff, a real estate broker, in his suit to recover a broker's commission from defendant.

The cause of action stated by plaintiff was, in substance, that 'the defendant employed the plaintiff to find a purchaser for certain property then belonging to her, and at said time agreed to pay the plaintiff a commission for finding a purchaser for said property;' that as a result of plaintiff's efforts the defendant did, on August 30, 1954, enter into a contract with one Shuey for the purchase and sale of a 580-acre tract and 'in said contract, and in ratification of the plaintiff's employment, the defendant agreed to pay the plaintiff $34,800.00 as a commission for finding a purchaser for the property described in said agreement * * *'; and that 'thereafter, the defendant concluded the transaction by executing and delivering a deed * * * for a portion of the acreage described in the said contract,' for which plaintiff claimed a commission of some $24,900, representing 10 percent of the purchase price of the smaller acreage actually sold by defendant.

Both parties moved for summary judgment, supported by affidavits; and, after answer filed by defendant, the trial judge entered a summary judgment for plaintiff. Defendant has appealed.

The facts of the transaction, as shown by the affidavits in the record, are that the plaintiff Moylan approached the defendant, Mrs. Estes, stating that he had a customer for certain property owned by her. The customer was purported to be one Shuey. Negotiations between Shuey and Mrs. Estes, transmitted through Moylan, culminated in the contract of August 30, 1954, referred to in the complaint. This contract provided for the purchase and sale of a 580-acre tract (designated Parcel No. 1) at a price of $600 per acre, and for an option to purchase another parcel, not here involved. The transaction was to be closed on October 11, 1954, and a part of the purchase price paid at that time, the balance to be covered by a mortgage payable over a four-year period. In this contract, Mrs. Estes agreed to pay Moylan 'as commission for finding a purchaser for the above-described property the sum of $34,800.00 if the sale of Parcel No. 1 is concluded * * *.' But it was also stipulated therein that 'The broker's commission shall be paid as the principal is received by Estes. No commission shall be payable therefor if either transaction fails of consummation for a cause not attributable to Estes or because of title defects.'

Shuey was actually acting as the agent of Maule Industries, Inc., in purchasing the property, a fact disclosed to Mrs. Estes at the time the August 30th contract was executed. Some three weeks later, on September 24, 1954, upon the insistence of and through negotiations with two other agents of Maule (Hough and Weiss), Mrs. Estes entered into a new contract for the sale to Maule of only a portion (385 acres) of the tract covered by the old (August 30th) contract but at a higher price ($650) per acre. Moylan did not participate in the negotiation of the new contract, and Mrs Estes said that she saw him only one time after the execution of the old contract, and then only to 'pass the time of day.' It is conceded that it was at Maule's insistence and request that the old contract was superseded by the new contract, and not because of any default on the part of Mrs. Estes.

There is a dispute as to whether Maule's agents definitely terminated the old contract, for reasons of their own not necessary here to relate. Hough stated that he did not and that he always intended to consummate the old contract if Mrs. Estes was unwilling to accept the new proposal. Mrs. Estes and her son stated positively that Shuey told them that Maule would not go through with the old contract, and Shuey did not controvert their statements. There is also some dispute as to the inferences to be drawn from Mrs. Estes' attendance at a zoning board meeting at which the tract was re-zoned to a use that would permit quarrying operations, which was Maule's purpose in buying the property.

These disputes are not important in the view we take of the matter, and the trial judge must also have considered them immaterial, since he entered summary judgment in favor of the plaintiff. His action in this respect (judging by the argument of Moylan here) was apparently based on the rule, as stated in Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876, 878, that 'If the broker has brought the parties together and a sale is effected as a result of continuous negotiations inaugurated by him, he will not be defeated in his effort to recover compensation simply because of a variation between the original terms stated by the owner and those finally accepted. Dancy et al. v. Baker, 206 Ala. 236, 89 So. 590.' Accord: Katz v. Bear, Fla.1951, 52 So.2d 903, 904; Parrish v. Tyre, Fla.1952, 59 So.2d 250. And see Shuler v. Allen, Fla.1955, 76 So.2d 879, 883, for a precise definition of 'continuous negotiations' within the meaning of the rule.

We are of the opinion that the rule of Taylor v....