DONALD F. WINTER, ET UX., APPELLANTS,
v.
INTERNATIONAL MOTEL BROKERS, INC., ETC., APPELLEES
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A broker can recover a commission from the property owner, but not also from the owner's agent, as liability is alternative, not joint and several.
Wife, believing she was a co-owner, signed an exclusive listing agreement for a motel. Her husband was the sole owner and later ratified her signature…
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PER CURIAM.
Donald and Betty Winter, husband and wife, appeal from a judgment entered after a non-jury trial finding them jointly and severally liable for a real estate commission to International Motel Brokers, Inc., earned upon sale of a motel owned by Donald Winter. We affirm the judgment against the husband, but reverse it against the wife.
In January of 1978, Betty Winter executed an agreement giving International an exclusive right to sell a motel in Daytona Beach. Betty thought she was a joint owner of the motel at the time she signed the agreement. In fact, her husband was the sole owner of the motel. He subsequently ratified her signature on his behalf.
Although a party may bring suit against both the agent and the principal on a contract, a judgment cannot be entered against both. Bertram Yacht Sales, Inc. v. West, 209 So. 2d 677 (Fla.3d DCA 1968); Hohauser v. Schor, 101 So. 2d 169 (Fla.3d DCA 1958). Betty Winter acted as an agent for her husband, fully disclosed as to his one-half ownership, and undisclosed as to her “supposed” one-half interest. In both situations the liability of the agent and disclosed/undisclosed principal is alternative rather than joint and several.1 The broker is entitled to a commission from the owner of the property, but not the owner’s agent as well.
AFFIRMED in part; REVERSED in part.
FRANK D. UPCHURCH and SHARP, JJ., and JAMIESON, FRANCES ANN, Associate Judge, concur. . Williston on Contracts § 289 (3d Ed. Jaeger 1959); Restatement (Second) of Agency §§ 210(1), 210 A, 184, Comment e (1958).
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Cedar Hills Props. Corp. & Loeb P'rs Corp. v. E. Fed. Corp., 575 So. 2d 673 (Fla. 1st DCA 1991)…t is appropriate in tort actions, such a finding is not appropriate upon a finding of a breach of contract. See White-Wilson Medical Center, v. Dayta Consultants, Inc., 486 So. 2d 659 (Fla. 1st DCA 1986); Winter v. International Motel Brokers, Inc., 388 So. 2d 232 (Fla. 5th DCA 1980). Unlike the case of City of Miami Beach v. Carner, 15 F.L.W. D2924 (Fla. 3rd DCA Dec. 4, 1990), there is no evidence that Loeb Partners was either named in the contract or held themselves out as an independent beneficiary of the…
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Burris v. Jacobson, Inc., 417 So. 2d 787 (Fla. 5th DCA 1982)…both. Oak Tree [*788] Homes, Inc., did not appeal the judgment. Burris contends for the first time on appeal, that both the principal and the agent cannot be held responsible for the same debt, relying on Winter v. International Motel Brokers, Inc., 388 So. 2d 232 (Fla. 5th DCA 1980). This issue has not been preserved for appellate review, and consequently we do not address it. . Nevertheless, cases interpreting that statute point to the issue created by such ambiguities and to the admissibility of parol evi…
Authorities Cited
- Hohauser v. Mrs. George Schor, 101 So. 2d 169 (Fla. 3d DCA 1958)
- Bertram Yacht Sales, Inc. v. West, 209 So. 2d 677 (Fla. 3d DCA 1968)