Opinion
July 29, 1952.
Appeal from the Circuit Court, Charlotte County, W.T. Harrison, J.
E.D. Treadwell, Jr., and Treadwell Treadwell, Arcadia, for appellant.
Farr Farr, Punta Gorda, for appellee.
This appeal is prosecuted from a final judgment entered in an action for a real estate broker's commission tried before a Circuit Judge, a jury trial having been waived.
In the final judgment the Circuit Judge made findings of fact and conclusions of law as follows:
"This is a suit in which the Plaintiff sues Defendant for a real estate broker's commission of One Dollar ($1.00) per acre on approximately eighteen thousand (18,000) acres of land known as the Alva Ranch, in Lee County, Florida, which was purchased from Defendant by one Harry Blumberg. Plaintiff contends that he procured a customer ready, able and willing to purchase the said property according to the terms of the offer, but that Defendant dealt with the said purchaser without the knowledge or consent of the Plaintiff, making it impossible for Plaintiff to perform these duties required upon his part in effecting a sale thereof because of the fault of the Defendant.
"The Defendant denied all of the material allegations of the said complaint, including a denial that the lands were listed with the Plaintiff; denied that the Plaintiff ever offered the Alva Ranch to the ultimate purchaser; denied that the Plaintiff ever informed Defendant that the ultimate purchaser was his prospect; denied that the Plaintiff contributed to the sale of the Alva Ranch, and affirmatively asserts that the Alva Ranch was first offered to the ultimate purchaser by Defendant, and that the same was in fact sold by Frank Whealton, Jr., a real estate broker, and that Defendant had already paid said broker a commission for the sale of the Alva Ranch.
"Both Plaintiff and Defendant waived a Jury Trial and this cause was heard by the Court without a Jury.
"Both Plaintiff and Defendant took depositions and the testimony of the same witnesses was taken before this Court. After all testimony was completed the cause was fully argued before the Court, and this Court has now reread the testimony so submitted by both Plaintiff and Defendant in the light of this Court's earlier observations at the time said testimony was offered, and has also read the depositions so offered in evidence, and after due consideration thereof hereby holds and determines:
"1. That Plaintiff did have a listing of Defendant's land and did advertise same and did approach the ultimate purchaser and did tell Defendant he had several wealthy prospects and that one was Harry Blumberg. However, the Defendant himself, and not the Plaintiff, first informed Harry Blumberg, the ultimate purchaser of the property, that the Alva Ranch was for sale.
"2. That Frank Whealton, Jr. was the procuring cause of the sale of the said Alva Ranch, and not the Plaintiff, and that the said real estate broker has been compensated by Defendant for his services.
"3. That Frank Whealton, Jr. sold the said Alva Ranch to the ultimate purchaser at a price greater than that at which Plaintiff insists the same was listed to him, and the Court is of the opinion that the said purchaser would not have left one broker to go to another broker and pay a higher price for the same piece of property.
"4. That the said broker, Frank Whealton, Jr., made two unsuccessful trips to contact Defendant and obtain a listing of said property during the month of August 1950, while Defendant was on vacation, and that shortly upon the return of the Defendant on or about August 31, 1950, that the said broker upon his own initiative obtained a listing of the said Alva Ranch directly from Defendant. That this listing was made in good faith by Defendant and without intention on the part of the Defendant to prevent Plaintiff from earning or collecting a commission for the sale of said lands and before Defendant knew that Plaintiff ever claimed that he had a prospect for the sale of said property.
"5. That Plaintiff did not produce a purchaser for said lands to Defendant and the Court further finds no testimony establishing the fact that Defendant dealt directly with such purchaser, as alleged in Plaintiff's amended complaint, without the consent or knowledge of Plaintiff.
"6. That Plaintiff has failed to prove the essential allegations of his amended complaint by a preponderance of the evidence as required by law, and therefore he cannot recover."
There was some conflict in the testimony as to what was said by the broker, Read, to the owner, Frizzell, and what was said between the broker, Read, and the purchaser, Blumberg.
The Circuit Judge heard the evidence to the same extent that a jury would hear the evidence. In the case of MacGregor v. Sachs, Fla., 57 So.2d 426, 427, we held:
"The trial Judge in this case heard the evidence to the same extent that a jury would hear the evidence. He saw the witnesses and heard them. He was a judge of their bias, prejudice and interest in the matter. He observed their manner of testifying and was a sole judge of the credibility of such witnesses."
In the case of W.H. Clark Fruit Company v. Bounds, Fla., 58 So.2d 552, 553, we held:
"The finding and judgment of the trial court is presumed to be correct and there is nothing in the record to overcome that presumption. His findings are entitled to the same weight as that of a verdict by a jury. Findings of fact by the jury, or the court below, will be sustained on appeal unless there is no substantial evidence to support them."
In this case there was substantial evidence to support the findings of fact by the trial judge.
There was no erroneous application of the law as applied to the facts as found by the trial judge.
Affirmed.
SEBRING, C.J., ROBERTS, J., and HOCKER, Associate Justice, concur.