Opinion
No. 70-988.
December 15, 1971. Rehearing Denied January 25, 1972.
Appeal from Court of Record for Broward County; James M. Reasbeck, Judge.
Ronald FitzGerald, of Fleming, O'Bryan Fleming, Fort Lauderdale, for appellant.
H. Mark Purdy, of Parkhurst LaHurd, Fort Lauderdale, for appellee.
Affirmed.
WALDEN, J., and SACK, MARTIN, Associate Judge, concur.
MAGER, J., dissents, with opinion.
I must respectfully dissent for the reason that the final judgment in favor of the plaintiff is simply not supported by the evidence in the record. Plaintiff sought damages resulting from defendant's alleged breach of warranties and misrepresentation of the age and condition of a yacht. Plaintiff had purchased the yacht from one Riley through the services of the defendant a yacht broker. Previous to the appeal sub judice plaintiff settled his claim for damages with the said Riley and now seeks to recover damages from defendant. Although the record does not indicate what damages plaintiff had incurred as a result of defendant's breach, the trial court entered a judgment, less certain setoffs, in the amount of the commission paid by plaintiff to the defendant for the sale of the yacht.
Ordinarily the measure of damages is not the contract price or consideration which, in this case, was the commission paid by plaintiff to defendant; a person injured by the breach of a contract is entitled to compensation for the loss he has suffered because of the breach. I am unable to equate the commission paid on a sale with the "damages" incurred by plaintiff. See Fla.Jur., Damages § 25, and §§ 24-26; 28 Fla.Jur., Sales, § 236.
Accordingly, I would reverse the final judgment.