Opinion
May 27, 1952.
Appeal from the Circuit Court for Volusia County, P.B. Revels, J.
John R. Godbee, Jr., De Land, Keen, O'Kelley Spitz and J. Velma Keen and Charles H. Spitz, Tallahassee, for appellants.
J. Thomas Gurney, Orlando, Raymond Wilson and James R. Wilson, Daytona Beach, for appellee.
This was an action by a real estate broker to recover a commission claimed to be due him because of the sale of an orange grove owned by the appellants.
Pursuant to notice and motion the lower court rendered a summary judgment in favor of the appellee for the brokerage commission based upon the pleadings, depositions and admissions of the parties and other evidence before him.
It is urged on the part of the appellants that the lower court committed error because: (a) the broker was employed to sell certain property for a million dollars cash and was to receive a commission of five percent if he sold the property for that amount, (b) that negotiations for the sale were carried on without any substantial assistance or effort on the part of the broker, (c) that the broker was unknown to the purchaser at any time and even at the time of the sale, and (d) that the actual price paid for the property was $912,000.
The appellants also make the broad contention that the broker did not procure a purchaser ready, willing and able to purchase the property, but that he merely introduced the sellers to a man who interested the purchaser in the property without the aid of the broker.
The position of the appellee is that even though the original price named by the sellers was one million dollars, after negotiations were begun, they voluntarily and of their own free will and accord accepted $912,000; that by his efforts he brought the parties together and that the various persons involved in the negotiations were instrumentalities used by the broker, the sellers, and the ultimate purchaser in carrying on the negotiations which finally resulted in a sale of the property, and that he is entitled to a commission of five percent upon the sale price. He further contends that there was no genuine dispute concerning any material facts and that the lower court correctly entered final judgment.
In order to better understand this case, it is necessary to name and describe the various parties. The appellee was a registered real estate broker of Orlando, Florida. Clinton Foods, Inc. (Snow Crop), the purchaser of the property, is a corporation which grows and processes citrus fruits and owns a number of groves in Florida.
Charles Metcalf is President of the corporation and Richard Moss is the Chairman of the Board of Directors; W.C., or Wesley, Moss is a brother of Richard Moss and is a real estate broker of East St. Louis, Illinois, and does work for Clinton Foods, Inc. in purchasing real estate. He has purchased some groves for this company in Florida.
R.T. Carlton is the Secretary-Manager of Plymouth Citrus Groves Association of Plymouth, Florida. This association has a contract with Clinton Foods, Inc., to process concentrate for them, and the more groves Clinton Foods, Inc. own or operate and the more citrus fruit it procures, the more work will be provided for Carlton, or his association. The Parrishes, who are the appellants here, owned the orange groves in question. Julia G. Parrish is a widow and the mother of Raymond G. Parrish, Julia P. Jones, Evelyn P. Nelson and Orline P. Wotring. The legal title to some of the groves is vested in some of the children but the real owner and principal as to all of the groves was the mother. Raymond G. Parrish acted as her General Manager and had authority from her to list the groves for sale. When the sale was finally consummated and the deed signed, all the Parrishes were present.
The undisputed testimony in this case discloses the following: Tyre had known Carlton as Manager of the Plymouth Citrus Groves Exchange for approximately 20 years and knew the business he was engaged in. Carlton told Tyre that he had some parties who were interested in buying some large acreage for groves and asked if he knew of any. Tyre told him he thought the Parrish groves were for sale. He called on Raymond Parrish to get some information about the groves and was told it would be necessary for him to discuss the price with his mother. He told Parrish he had some people in mind who would pay cash for the property. He had Clinton Foods, Inc. in mind because he knew that Carlton had contacts with Clinton Foods, Inc. and was interested in increasing their business. Parrish told Tyre he would not feel obligated to pay a commission unless Tyre's people bought the grove and the deal was actually closed. Carlton was not an employee or a representative of Clinton Foods, Inc., but as the record shows, he was an instrumentality which Tyre used to make the necessary contacts. Tyre and Carlton met to go to De Land and Carlton told Tyre that Richard Moss and Metcalf were the principal officers in Clinton Foods, Inc. Carlton and Tyre met Parrish in De Land and Tyre introduced Carlton as the Manager of the Plymouth Citrus Groves Association, and as the man authorized to look for some groves for Clinton Foods, Inc. At that time there was some discussion between the parties as to price, acreage and fruit on the trees. Parrish stated he had discussed the matter with his mother and at that time he gave a price of one million dollars for the total property, including the fruit on the trees. Later some question arose as to whether the price included the fruit on the trees when negotiations started, or the fruit on the trees at the time of the sale. At that time Carlton told Parrish that Clinton Foods, Inc., was the firm interested in buying the groves and would either call Parrish or Tyre. After this meeting Carlton took Wesley Moss to see the groves several times. Afterwards Carlton asked Tyre to get more accurate information and was given a letter addressed to Carlton with a copy for Tyre. He took the letter to Carlton's office where they read the letter and discussed it. He kept his copy. Carlton said it looked favorable and that Clinton Foods, Inc. would definitely be interested. After Carlton had received information concerning the groves, he talked to Metcalf who said he was very much interested and asked Carlton to find out more about the groves. From that time on the negotiations were continuous between various parties, including Carlton, Moss, Tyre, the Parrishes, and Francis P. Whitehair, Attorney for the Parrishes. The letter above mentioned is as follows:
January 23, 1950.
"Mr. Robert T. Carlton, Gen. Mgr., Plymouth Citrus Growers Ass'n., Plymouth, Florida.
"Dear Sir:
"Mr. Tyre of Orlando has requested me to furnish more adequate information to you in regards to our properties, which has been under discussion between us. The information you requested was as follows:
"Tree count, varieties and percent of each and terms.
"As to tree count, you will no doubt admit that on such short notice it was relatively impossible to secure an accurate tree count, nevertheless, with the assistance of the key men in this organization, we made a block by block tree count, which we feel is very close to accurate, of course subject to a row by row tree count. On securing this tree count we find we have a total of 54,296 trees, this of course includes all varieties. I am not in the position to give you the accurate count of varieties, but it is my firm belief that at least 60% are early and midseason oranges. Probably 30% late and the other ten tangerines and grapefruit. The above figures are all subject to correction determined by a row by row tree count.
"Now as to possibility of terms, this subject has not previously been mentioned, therefore, I am not in the position to state any terms at all, but I will say this, that if prospective buyers so elect to consummate the deal, I am sure that our attorney will recommend to my mother and I the best possible way to handle it.
"As to price, the price as has been before stated, is one million dollars. This price includes the purchase of the groves which have been listed and the fruit on the trees at the time of acceptance. On these properties there is also five tenant houses in good condition, one deep ten inch well with a 60 horse power electric motor, 1000 gallons per minute capacity for irrigating purposes. There is no irrigation pipe or equipment included in the above mentioned price.
"I trust that the above mentioned information meets with your approval and if there is any further information you desire, I will do all in my power to secure it for you.
"With my kindest personal regards and awaiting the pleasure of meeting you in the near future, I remain,
"Very truly yours,
PARRISH FRUIT COMPANY
(Signed) BY: Raymond G. Parrish
"Copy to: Mr. Tyre General Manager Mr. F.P. Whitehair."
With reference to this letter, it should be observed that although the letter was written to Robert T. Carlton, Parrish admitted that Tyre had requested more adequate information. A copy of the letter was for Tyre and another for F.P. Whitehair, Attorney for the sellers. The original letter was given by Carlton to Wesley Moss. In the course of Carlton's testimony we find the following:
"Q. Did Mr. Moss know that Mr. Tyre came over there and got the information? A. No, I didn't tell him that, but the letter states `at his request'.
"Q. You never told Mr. Wesley Moss who Mr. Tyre was? A. He didn't ask me. I didn't know it was any concern of his."
The original letter was given by Wesley Moss to Mr. Brown of Tampa, the Attorney for Clinton Foods, Inc.
After the receipt of this letter and further negotiations, Wesley Moss, after consulting with his brother, entered into an agreement to purchase the property and it took all day to draft an agreement satisfactory to all concerned. The negotiations as to change of price concerned a shortage of citrus acreage, tree count, and the sale of the fruit before the contract was completed. All of these questions were settled by direct negotiations between the parties. The contract to purchase was taken in the name of Wesley C. Moss. He testified, "When I act as purchasing agent for Clinton Foods, Inc., I make the deal as a personal deal. In this transaction I represented Clinton Foods, Inc. as their real estate representative. It was ultimately authorized that this property be taken by Clinton Foods, Inc."
Throughout these negotiations the appellee kept in touch with the parties, inquired of Parrish how the negotiations were proceeding, and was advised that everything was "going along fine." He offered his services to do anything he could about the matter, and was told that there was nothing for him to do.
Mrs. Julia G. Parrish, the mother, blamed Tyre for not delivering the letter to Moss. The undisputed testimony shows that Tyre received the letter from Mrs. Parrish's son and delivered the same to Carlton and Carlton delivered it to Wesley Moss and Wesley Moss to Clinton Foods, Inc.'s attorney. She gave the following testimony of events and conversations at the time of the actual closing of the sale and delivery of deeds:
"Q. Now you felt you had to reduce it fifty thousand dollars? A. Well, no, I didn't feel like I had to, but I felt that I was just so worn out with it and we were in it and I was leaving the 13th for Europe, and I wanted to clean it up.
"Q. You were advised, were you not, that you didn't have to take any reduction? A. Well — I am a pretty good business woman myself. I didn't have to. Yes, Mr. Whitehair asked me what I thought and I made no other discussion. I said, `All right, go ahead and take it. Close it up.' I said `I am sick and tired of it.' Because, I am awful nervous and high strung and upset, and we had been fooling with this since January, and I was just sick of it."
At this conference, a reduction of price of $50,000 was made because of a difference in tree count of 2,000 trees.
There is no question that the sellers knew that the prospective purchaser was Clinton Foods, Inc. and when the contract of sale was made with Wesley C. Moss everyone understood that he was buying for Clinton Foods, Inc.
It did not matter whether Tyre knew Metcalf or not. It did not matter whether he negotiated directly with the officers of Clinton Foods, Inc. Tyre is referred to by appellants as a mere "errand boy". He was a licensed real estate broker and in getting information and carrying messages back and forth, the record shows that he was an excellent errand boy. He knew Carlton and knew Carlton's business. He knew that Carlton had a contract with Clinton Foods, Inc. and that the more citrus fruit Clinton Foods, Inc. could obtain, the more work Carlton would have to do. It was natural that Tyre should use his best contacts in interesting a prospective purchaser and he adopted Carlton as his instrumentality. The record shows that his selection of Carlton was an excellent choice because at times when negotiations would almost break down, Carlton insisted on resumption of such negotiations.
With reference to the commission of five percent, in the very beginning Parrish was particular about the commission, and it was to be five percent only if a sale was actually made. At the time of the negotiations for an option, the question of the real estate man's commission in the event the parties fell down on the option was discussed. Mr. Tyre suggested twenty-five percent of the option money. Mr. Whitehair, Attorney for the Parrishes, said he would not recommend any such agreement and Tyre then agreed that five percent of the option money would be all right. On the day the deed was signed, Mr. Whitehair, in his office, called their attention to the fact that they owed a real estate commission. Raymond Parrish testified:
"Yes, he told us there was a real estate man in it."
Carlton testified:
"At the meeting in Mr. Whitehair's office Mr. Whitehair told Mr. Tyre in my presence, `Well, if Snow Crop buys the groves, you will get five percent commission'."
In the case of Sunshine v. Golden Arms Apartments Corporation, Fla., 47 So.2d 1, 3, we held:
"When she performed that service she was entitled to compensation, and the manner employed by the seller and the buyer in consummating the deal was not her concern. These steps were taken after she had carried out her part of the contract of employment."
In the case of Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876, 878, the Court said:
"Before proceeding with an analysis of the letters which followed it is well to pause and examine the authorities which have dealt with situations where a broker employed to procure a purchaser ready, willing, and able to buy secured one who made a counteroffer which was eventually accepted by the seller. It seems that in such circumstances the owner is privileged to reject the counteroffer and escape liability for compensation, but if he accepts it he must pay the broker for his services. Swift v. Hale Covington Real Estate Co., 196 Ky. 446, 244 S.W. 867. 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; 8 Am.Jur., Brokers, Page 1092."
In the case of Katz v. Bear, Fla., 52 So.2d 903, 904, the Court held:
"It is contended here that the plaintiff was not entitled to the commission because there was not a meeting of the minds of the parties on the item of $5,000.00 which the owner referred to as a commission. The purchaser then had $30,000.00 in cash and was willing to pay the amount for the hotel. The owner refused to accept the $30,000.00, but eight days thereafter accepted said sum and the purchaser's additional promise to pay at a subsequent date the commission in the sum of $5,000.00 The broker brought the parties together and a continuous negotiation existed which later resulted in a trade. It is true that the original terms of the trade were changed by mutual consent. The broker produced a purchaser ready, able and willing to buy the hotel. He later bought it on the owner's terms. See Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876."
It is true that in the beginning the Parrishes named a price of one million dollars and agreed to pay five percent if a sale was actually consummated. After that Tyre through his influence, knowledge and efforts brought Clinton Foods, Inc. and their officers into the picture through the instrumentality of Carlton. As shown by the record the question of whether the price included fruit on the trees at the time of the first conference, or fruit on the trees at the time of the actual sale, the number of acres of land having citrus trees thereon, the actual count of citrus trees, were matters of discussion and negotiation. Twice the parties changed the price, and finally executed a deed and accepted an agreed price in the office of the attorney for the appellants. The owners were privileged to reject the final price agreed upon and thereby escape liability for a commission to the broker. They did not do this. They agreed upon a price without compulsion, executed the deed, accepted the $912,000, and thereby became obligated to pay the broker for his services.
There was no genuine dispute concerning the material facts in this case, and we find no reversible error in the record.
Affirmed.
SEBRING, C.J., and CHAPMAN and THOMAS, JJ., concur.