C. W. NICOL
v.
SAMUEL BRESSLER AND S. N. ROSENHOUSE
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A real estate broker claimed fraud and conspiracy after a property transaction between buyer and seller was completed without his involvement in the closing, allegedly depriving him of a commission. The Florida Supreme Court held that the broker's remedy lies against the party with whom he contracted and that the fraud allegations failed because the broker lost no compensable right.
The broker's claims for fraud and conspiracy fail because he suffered no deprivation of compensable rights; his remedy for commission is against the owner with whom he contracted, regardless of how the transaction was completed. The broker could not have prevented the transaction even if present, and his claim for compensation remains unchanged.
“The buyer and seller may have intended to conceal from him facts which would evidence liability of the seller to the broker for a commission.”
Establishes that even if concealment occurred, it does not create new liability
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Join FLexlaw to unlock all legal intelligenceNicol, a real estate broker, found a buyer for property owned by Bressler and Rosenhouse. The transaction between buyer and seller was completed, but …
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Plaintiff-respondent was a broker and was interested in finding a buyer for defendant-owner’s property. He found a *669buyer who bought. The deal between the buyer and seller may not have been closed under the directions of the broker-plaintiff but this he had no right to demand. The buyer and seller may have intended to conceal from him facts which would evidence liability of the seller to the broker for a commission.
If the transaction between the buyer and seller had been completed with the broker looking on he could not have prevented it and his claim would have been the same as it is now.
Although the broker-plaintiff alleges fraud and conspiracy, no facts are plead revealing that the broker has been deprived of anything nor to show any invasion of plaintiff’s rights by a conspiracy.
The broker still has all that he could have — a claim for compensation against the party with whom he contracted — to-wit: the vending owner.
For a similar case see Robertson v. Williams, 158 Fla. 163, 28 So. (2nd) 114. See also Moss v. Sperry, 140 Fla. 301, 191 So. 531, 125 ALR 909.
Certiorari denied.
THOMAS, C. J., CHAPMAN and SEBRING, JJ„ concur.
TERRELL, BUFORD and ADAMS, JJ., dissent.
On petition for certiorari under Rule 34, we review an order dismissing a bill in equity cancelling a lis pendens and transferring the cause to the law side of the court.
The gist of the bill is that petitioner was a real estate broker and was engaged by respondent Bressler to find a purchaser for certain real estate; that respondent Rosenhouse was found by petitioner and introduced to Bressler as a likely prospect. Thereafter Bressler and Rosenhouse fraudulently conspired to cheat petitioner out of his commission. In furtherance of the conspiracy, they consummated the sale of the original purchase price, less the commission which petitioner would have received, both receiving the benefit of the commission.
By his bill petitioner seeks to impress an equitable lien on the property.
*670The chancellor was of the opinion that his remedy at law was adequate.
We have never had just such a case as this before us and. it is a close question, nevertheless we have come to the conclusion that the remedy at law is not clear and adequate. Obviously'we have only the case made by the bill and from that, the fraudulent act is admitted. Petitioner performed his duty; the purchaser became a party to the fraud, received the-property and gained that which rightfully belonged to petitioner.
Several times we have considered the question of an equitable lien involving somewhat different facts. See Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 48 A.L.R. 1409; Moss v. Sperry, 147 Fla. 86, 191 So. 534; Gables Racing Association, Inc. v, Persky, 148 Fla. 627, 6 So. (2nd) 257.
TERRELL, J., concurs.
ADAMS, J., dissenting:
On petition for certiorari under Rule 34, we review an order dismissing a bill in equity cancelling a lis pendens and transferring the cause to the law side of the court.
The gist of the bill is that petitioner was a real estate broker and was engaged by respondent Bressler to find a purchaser for certain real estate; that respondent Rosenhouse was found by petitioner and introduced to Bressler as a likely prospect. Thereafter Bressler and Rosenhouse fraudulently conspired to cheat petitioner out of his commission. In furtherance of the conspiracy, they consummated the sale of the original purchase price, less the commission which petitioner would have received, both receiving the benefit of the commission.
By his bill petitioner seeks to impress an equitable lien on the property. The chancellor was of the opinion that his remedy at law was adequate.
We have never had just such a case as this before us and. it is a close question, nevertheless we have come to the conclusion that the remedy at law is not clear and adequate. Obviously'we have only the case made by the bill and from that, the fraudulent act is admitted. Petitioner performed his duty; the purchaser became a party to the fraud, received the-property and gained that which rightfully belonged to petitioner. Several times we have considered the question of an equitable lien involving somewhat different facts. See Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 48 A.L.R. 1409; Moss v. Sperry, 147 Fla. 86, 191 So. 534; Gables Racing Association, Inc. v, Persky, 148 Fla. 627, 6 So. (2nd) 257.
TERRELL, J., concurs.
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The Mead Corp. v. Mason, 191 So. 2d 592 (Fla. 3d DCA 1966)…“The intentional and unjustified interference with the advantageous business relationship existing between others which results in injury constitute a tort tender, the law of this State.” 2 The defendants cite [*594] Nicol v. Bressler, 159 Fla. 668, 32 So. 2d 457 (1947) in support of their argument that no damages have been established since the broker still has all that he could have —a claim for compensation against the seller. Although the Nicol case does assert that point of view, our courts have since r…
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ORO Verde Groves, Inc. v. Fuchs, 136 So. 2d 12 (Fla. 3d DCA 1962)…judge committed no error in granting summary judgment for the plaintiff against the defendants. See Schneider v. Binder, Fla.1954, 72 So. 2d 909; Williams v. Dr. P. Phillips & Sons, 160 Fla. 110, 33 So. 2d 637; Nicol v. Bressler, 159 Fla. 668, 32 So. 2d 457; Dr. P. Phillips & Sons v. Kilgore, 152 Fla. 578, 12 So. 2d 465. See also Prosser, Torts (2d ed 1955) S. 46, pp. 234-35. Accordingly, the judgment appealed from should be and hereby is, affirmed. PEARSON, TILLMAN, C. J., concurs in part and dis…
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Borinsky v. Cohen, 86 So. 2d 814 (Fla. 1956)…t of action, if any, against-the seller but not against the purchasers with whom he had no contract. This conclusion is adequately sustained by our decisions in Robertson v. Williams, 158 Fla. 163, 28 So. 2d 114; and Nicol v. Bressler, 159 Fla. 668, 32 So. 2d 457. As an equity cause this case is not even remotely similar to Moss v. Sperry, 140 Fla. 301, 191 So. 531, 125 A.L.R. 909. As to the second count, however, the allegations are different in that this count specifically reaverred all allegations of the…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Morgan F. Jones in Bankr. of Jacksonville Bread Co. v. Carpenter, 106 So. 127 (Fla. 1925)
- State v. City of Palmetto, 140 Fla. 252 (Fla. 1939)
- Gables Racing Assoc., Inc. v. Persky, 148 Fla. 627 (Fla. 1940)
- Moss v. Sperry, 140 Fla. 301 (Fla. 1939)
- Moss v. Sperry, 147 Fla. 86 (Fla. 1941)
- Robertson v. Martie Williams and Horace E. Henderson, 158 Fla. 163 (Fla. 1946)
- Coleman Hill v. State, 158 Fla. 162 (Fla. 1946)