Wiggins v. Wilson

• Decision Date: 12 February 1908
• Citation: 45 So. 1011,55 Fla. 346
• Court: Florida Supreme Court
• Parties: WIGGINS, Sheriff v. WILSON et al.

45 So. 1011

55 Fla. 346

WIGGINS, Sheriff v. WILSON et al.

Florida Supreme Court, Division B.

February 12, 1908

Error to Circuit Court, Polk County; Park M. Trammell, Referee.

Action by Solon G. Wilson and another, partners, against Mary A Stokes. Pending the suit defendant died, and the suit was revived against John R. Wiggins, sheriff and ex officio administrator of the estate of Mary A. Stokes, deceased. Judgment for plaintiffs, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

There is a recognized distinction between the employment of a broker to find or procure a purchaser for the property of another and his employment to effect a sale of such property. In the one case the broker finds the purchaser and produces him to his principal, who negotiates and effects the sale with such purchaser; in the other case the broker not only finds the purchaser, but negotiates the sale with him on the terms authorized by his principal, leaving nothing for the principal to do but execute the necessary conveyance of the title.

In actions at law, evidence offered in support of an allegation with which it appears to be variant should be excluded, if objected to. Where a pleading alleges an absolute promise or agreement, and the proof shows one that was contingent or conditional, the variance is fatal.

A broker employed to sell, as distinguished from a broker employed to find a purchaser, is not entitled to compensation until he effects a sale or procures from his customer a binding contract of purchase within the terms of his authority.

A broker employed to find a purchaser, to be entitled to compensation, must either produce to the owner a customer who is able, ready, and willing to buy on the terms prescribed by the owner, or else take from the customer a binding contract of purchase within such prescribed terms.

An agent or broker to whom is given the exclusive right to sell a tract of land belonging to another cannot recover commissions when the owner effects the sale, unless he has produced to such owner a purchaser ready, able, and willing to buy on the terms specified in his contract of employment.

Where a landowner agrees with an agent to pay him a specified gross sum if he will procure a purchaser of a lot of land at a stipulated price, the agent cannot recover the sum agreed on as his commission without procuring and producing to the owner a purchaser able, ready, and willing to pay such price and, where negotiations by the agent with one who contemplates buying at some price are not concluded, and the same are voluntarily broken off by the customer, and he afterwards purchases the property directly from the owner at a less price, the agent is not entitled to recover.

If an agent, employed by the owner to find a purchaser for, or to effect a sale of, a tract of land, knows that a customer found by him has the ability, and is ready and willing, to purchase the property at the price and on the terms that he is authorized to sell it, it is the duty of such agent promptly to notify his principal of such fact. Then, after receiving such notice, if the principal sells to such customer at a less price and on different terms than those given to the agent, the latter will be entitled to his commissions. But if the agent knows of the customer's ability, readiness, and willingness to purchase the property at the price and on the terms named in his contract of employment, and withholds such knowledge from his principal it amounts to bad faith with his principal, which forfeits his right to any commissions out of a sale effected by the principal in ignorance of such facts.

COUNSEL H. K. Olliphant and Price & Watson, for plaintiff in error.

Wilson & Boswell, pro se.

OPINION

TAYLOR, J.

The defendants in error sued the plaintiff's intestate during her lifetime in the circuit court of Polk county in assumpsit for the recovery of commissions alleged to be due them as real estate agents or brokers for procuring a purchaser for her lands. She died pending the suit, which was revived against her administrator, the plaintiff in error. The case was by agreement referred to and tried by a referee, who found in favor of and rendered judgment for the plaintiffs below; and to have this judgment reviewed the defendant below brings the case here by writ of error.

There are 27 assignments of error, but from the conclusions at which we have arrived after careful consideration of the pleadings and evidence, with the objections and exceptions urged at the trial, it will be unnecessary to discuss more than two or three of them in order to completely dispose of the case presented here.

The declaration in the case was substantially as follows:

'The plaintiffs in the above-styled cause, by Wilson & Wilson, their attorneys, complain of the defendant Mary A. Stokes, for that the said defendant, being a part owner of divers lands and tenements situated in townships 26 and 27 south, range 26 east, and in township 26 south, in ranges 24 and 25 east, and in township 27 south, in ranges 25 and 27 east, in Polk county, Florida, then and there in the county aforesaid, on the 4th day of March, A. D. 1901, employed the said plaintiffs to procure for the defendant a purchaser for said lands and tenements at and for the price of 80 cents per acre; that plaintiffs thereupon in the county and state aforesaid, through their efforts in that behalf, found, procured, and produced a purchaser for said lands at the price so agreed upon, whereupon the said purchasers, to wit, Hattie Drew, B. Drew, William Fletcher, John Fletcher, Sr., H. F. Fletcher, and A. F. Fletcher, did on or about the 8th day of July, 1901, consummate the purchase of said land, aggregating 20,397.86 acres, at the price aforesaid; that the said defendant at the time of such employment agreed with plaintiffs to pay them for their services in this behalf a commission of 5 per cent. on all sums of money received by plaintiffs as the purchase price of said lands and tenements; that the sale of said lands of the defendant was brought about and consummated through the efforts of plaintiffs in that behalf; that notwithstanding the said sale has so as aforesaid been consummated, yet the defendant has not paid to the plaintiffs their said commission, amounting to the sum of $815.91, or any part thereof, though often requested so to do; and for that, whereas, the said defendant was on the 4th day of March, 1901, justly indebted to the plaintiffs in the sum of $815.91 for work and labor and the services of the plaintiffs by them before that time done and bestowed in and about the business of the defendant at her request, all of which several sums of money the defendant has promised to pay on demand, yet the said defendant, though requested, has not paid the same, or any part thereof, to the plaintiffs, but refuses so to do, to the damage of the plaintiffs in the sum of $815.91; and therefore they bring their suit.'

The original defendant pleaded as follows:

(1) Never was indebted.

(2) That she did not promise as alleged.

The substituted defendant administrator, besides adopting the above pleas of his intestate, filed the following additional pleas:

(1) That it is untrue that the plaintiffs found, procured, and produced a purchaser as alleged in the declaration.

(2) That the alleged sale was not made or induced by any efforts of the plaintiffs, and the defendant's intestate sold the said lands to the alleged purchasers without any knowledge that the said purchasers, or any of them, had been found by the plaintiffs.

Upon the issues thus made the trial was had. At the trial, to make out their case, the plaintiffs offered in evidence the following letters from Messrs. Price & Price, of Marianna, Fla., who, it is practically admitted, were the authorized agents and attorneys for Mary A. Stokes, the owner of the lands involved, and the original defendant in the cause:

'Marianna, Florida, Dec. 15, 1900.

'Messrs. Wilson & Boswell, Bartow, Florida.

'Dear Sirs: Your favor to Mrs. Stokes has been referred to us. Replying will state Mrs. S. will sell property at one dollar per acre and pay com. at ten per cent. If you can make sale at these figures you are authorized to close, or we should be pleased to consider a counter proposition. The property is now ready to be sold.

'Yours truly,

Price & Price.'

'Marianna, Florida, 3-4-1901.

'Wilson & Boswell, Bartow, Florida.

'Dear Sirs: We have just heard from Mrs. Stokes relative to the lands situated in South Florida. We are authorized by her to close trade on the 21,000-acre tract, being all of her lands except those at Haines City, at 80 cents per acre, 1/3 cash, 1/3 in November, and 1/3 in 12 months from date of sale. Deferred payments to bear interest from date at 8 per cent. Purchaser to pay taxes now due upon the property. If you can close deal on these terms, will be willing to pay 5% commission as per your proposition. If you can close trade, wire us, and we will prepare deeds and forward them to you and procure necessary order of court to confirm sale.

'We are, very truly yours,

'Price & Price.

'P. S. We have received another letter from Sands and Potter, claiming they are the parties who have this deal on hands. You had better see them, if this contention is correct, and arrange matters.'

'Marianna, Fla., 2-28-1901.

'Messrs. Wilson & Boswell, Bartow, Florida.

'Gentlemen We have received enclosed letter from Messrs. Sands & Potter, which is self-explanatory. We know nothing relative to your contract with them in case of sale. If sale should be made in compliance with your last proposition, we shall expect to pay only 5% commission, which will be paid to you, and you will have to arrange...