Waddell v. Holbrook Co. , 108 Fla. 332 ( 1933 )


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  • Plaintiff below, defendant in error here, had a recovery at law on a written contract reading as follows:

    " 'Orlando, Florida, 7/31, 1925.

    " 'J. P. Holbrook Co.,

    " 'You are authorized to sell the property described on the reverse side of this card 2500. Binder at the price of $35,000.00, payable $15,000 cash; balance Terms to suit purchaser at 8 per cent. Semi An.

    " 'In the event you find a customer who is able, ready and willing to purchase said property upon the terms stated, or *Page 334 such other terms as are satisfactory to me, I agree to furnish a complete abstract of title, will make, execute, and deliver to purchaser a warranty deed, and to pay you from the proceeds of first cash payment a commission equal to 5 per cent. of purchase price.

    " 'Mrs. W. J. Waddell, Owner, " 'Winter Park Address.' "

    Plaintiff showed that he had found for Mrs. Waddell a purchaser who was able, ready and willing to purchase the property upon the terms stated, or such other terms as were satisfactory to Mrs. Waddell. Mrs. Waddell agreed in writing to sell the property to the customers whom plaintiff had produced, and the customer in turn agreed to purchase the same for $35,000.00 payable as follows: $2,500.00 earnest money, which was to be credited on the $35,000.00 when the sale was consummated, balance payable $12,500.00 upon delivery of deeds and remainder in agreed installments. Mrs. Waddell was paid by the customer and accepted from him $2,500.00 on the deal evidenced by the written contract. This was sufficient to entitle plaintiff to claim his 5 per cent. commission on the purchase price which Mrs. Waddell had agreed to pay "from the proceeds of the first cash payment."

    A majority of the Court were of the opinion, when the judgment was heretofore affirmed by our memorandum order of February 21, 1933, that plaintiff had earned his commission when the $2,500.00 binder was paid to defendant on her agreement with the purchaser to accept and credit it as part of the cash payment the contract provided should be paid for the land, and that it was immaterial to plaintiff's case, whether or not thereafter the trade was ever consummated pursuant to the defendant's contract of sale with the customer that plaintiff had produced under his listing agreement. *Page 335

    A majority of the Court still adhere to that view, so a rehearing will be denied.

    Rehearing denied.

    WHITFIELD and BUFORD, J. J., and ROWE, Circuit Judge, concur.

    TERRELL and BROWN, J. J., dissent.

Document Info

Citation Numbers: 147 So. 213, 108 Fla. 332, 146 So. 668

Judges: BROWN, J. —

Filed Date: 2/21/1933

Precedential Status: Precedential

Modified Date: 1/12/2023