JACK Y. WILLIAMS AND G. RITA ALA, APPELLANTS,
v.
JOHN J. STEWART, APPELLEE
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Real estate brokers Williams and Ala sought damages from purchaser Dr. Stewart after he breached a property purchase contract and forfeited his earnest money. The court held that absent an express written agreement, a purchaser breaching a real estate contract is not liable to brokers for their commission, and that earnest money forfeiture is the sole remedy for breach.
The brokers' counterclaims for breach of contract, breach of an implied promise to complete the transaction, and unpaid commission were properly decided against them by summary judgment. A purchaser is not liable to brokers for commission absent an express written agreement making him liable, and the earnest money forfeiture agreed upon in the written contract is the sole remedy available for breach.
[1] A purchaser breaching a contract for the sale of real property is generally not liable to the broker for a commission, absent an agreement to the contrary.
[2] A broker must typically look to the seller for payment of a commission.
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Join FLexlaw to unlock all legal intelligence“Generally, absent some agreement to the contrary, a purchaser breaching a contract for sale of real property is not liable to the broker for his commission.”
Establishes the foundational rule that purchasers are not liable to brokers for commissions absent express agreement
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Join FLexlaw to unlock all legal intelligenceDr. Stewart engaged broker Williams to find investment property and subsequently contracted to purchase the Plantation Inn through listing broker Ala.…
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CAMPBELL, Judge.
While attending a small social gathering, Dr. John Stewart met Jack Williams, a licensed, Florida real estate broker. Dr. Stewart told Williams he needed to shelter some income and asked Williams to find some property for him. Subsequently, Williams learned of the availability of the Plantation Inn through its listing broker, G. Rita Ala, and, after showing this property to Dr. Stewart, the parties entered into a contract for sale. This contract specifically provided that the seller was responsible for paying the broker’s commission to Ala and Williams.
At the doctor’s request, this contract was made subject to an engineering report on the property. Williams, accordingly, hired an engineer who reported that the property needed only minor repairs. The parties then set closing for February 27, 1978.
Sometime prior to closing, Dr. Stewart learned that the roof leaked, and, at the closing, he said he did not want to close because of the roof. He also complained that the contract was messy and that he wanted his brother, an attorney, to examine it. Williams and Ala offered to pay for a new roof even though they did not believe a new one was needed. The vendors also maintained that the building did not need a new roof. The closing never occurred, and Dr. Stewart later demanded return of his earnest money, which demand was refused.
The doctor then sued the brokers for damages arising from the loss of his earnest money. They answered and counterclaimed, alleging breach of the real estate contract, breach of an implied promise to complete the transaction, and breach of an agreement to pay a broker’s commission. The trial court entered summary judgment for the doctor on these counterclaims, and the case continued to trial on the remaining issues. The jury found for the brokers. Williams and Ala then appealed the entry of summary judgment on their counterclaims, and Dr. Stewart cross-appealed the adverse jury verdict.
Generally, absent some agreement to the contrary, a purchaser breaching a contract for sale of real property is not liable to the broker for his commission. Bruce v. American Development Corp., 408 So. 2d 857 (Fla. 3d DCA 1982); Belk v. Oehlert, 324 So. 2d 668 (Fla. 4th DCA 1975); Tutko v. Banks, 167 So. 2d 110 (Fla. 3d DCA 1964). A broker must usually look to the vendor for his commission. Borinsky v. Cohen, 86 So. 2d 814 (Fla.1956); Moss v. Sperry, 140 Fla. 301, 191 So. 531 (1939).
Here, the contract specifically stated that only the seller was obligated to pay the broker’s commission. Nevertheless, appellants have argued that appellee impliedly promised to complete the transaction and that this implied promise was a contract separate from the express written contract. There is only one contract here, that being the express contract signed by all the parties to the transaction. A conclusion that there was also an oral, implied promise by the purchaser to complete the transaction would violate the statute of frauds. In any event, where there is an express agreement, the law will not imply one. Jacksonville American Publishing Co. v. Jacksonville Paper Co., 143 Fla. 835, 197 So. 672 (1940); Hazen v. Cobb-Vaughan Motor Co., 96 Fla. 151, 117 So. 853 (1928). The brokers provided the contract, and if they wished to make the purchaser liable for their commissions under certain circumstances, they could have done so. We recognize that other jurisdictions have reached contrary results regarding the liability of a purchaser for a real estate broker’s commission when he makes no express, written agreement to pay that commission. See, e.g., Ellsworth Dobbs, Inc. v. Johnson, 50 N.J. 528, 236 A. 2d 843 (1967). However, this is a minority view which does not obtain in Florida. See 30 A.L.R.3d 1395.
Finally, regarding the allegations that appellee breached the real estate contract, clearly he had the right to do so and to suffer, as a result, the loss of his earnest money deposit. All parties, including the broker, agreed in writing that this would be the appropriate remedy in the event of a breach by appellee. Therefore, appellants cannot now seek additional damages from appellee over and above the earnest money deposit. Accordingly, we affirm the summary judgment entered on appellants’ counterclaims. We have examined the points raised by appellee on cross-appeal and find them to be without merit.
AFFIRMED.
OTT, C.J., and BOARDMAN, J., concur.
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Kovtan v. Frederiksen, 449 So. 2d 1 (Fla. 2d DCA 1984)…xistence of an express agreement between the parties. It is well settled that the law will not imply a contract where an express contract exists concerning the same subject matter. Hazen v. Cobb, 96 Fla. 151, 117 So. 853 (1928); Williams v. Stewart, 424 So. 2d 204 (Fla. 2d DCA 1983); Poe v. Estate of Levy, 411 So. 2d 253 (Fla. 4th DCA 1982); Tobin & Tobin Insurance Agency v. Zeskind, 315 So. 2d 518 (Fla. 3d DCA 1975); Solutec v. Young & Lawrence Associates, Inc., 243 So. 2d 605 (Fla. 4th DCA 1971). Accordin…
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Brusko v. Circle OF Seminole, Inc., 436 So. 2d 399 (Fla. 2d DCA 1983)…judgment for Brusko for the entire $9,000. Once the trial court determined that only the $1,000 earnest money deposit was subject to the liquidated damages clause, he should not have awarded damages in excess of that sum. As in Williams v. Stewart, 424 So. 2d 204 (Fla. 2d DCA 1983), the parties had agreed that forfeiture of the purchaser’s earnest money deposit would be the appropriate remedy in the event of a breach by the purchaser. This court held that the vendors in Williams were not entitled to seek fro…
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Liebowitz v. Wright Props., Inc., 427 So. 2d 783 (Fla. 4th DCA 1983)…d the check to the broker but received nothing from the broker in return. The broker’s services do not constitute consideration to the buyer because the contract expressly provides that the seller will pay the broker. See, e.g., Williams v. Stewart, 424 So. 2d 204 (Fla. 2d DCA, 1983). Thus, there was no consideration to support the buyer’s executory promise to pay in accord with the check he gave the broker. Without supporting consideration, the promise to pay embodied in the instrument is unenforceable. 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
- Hazen v. Cobb, 96 Fla. 151 (Fla. 1928)
- Jacksonville Am. Publ'g Co. v. Jacksonville Paper Co., 143 Fla. 835 (Fla. 1940)
- State v. City of Palmetto, 140 Fla. 252 (Fla. 1939)
- Moss v. Sperry, 140 Fla. 301 (Fla. 1939)
- Borinsky v. Cohen, 86 So. 2d 814 (Fla. 1956)
- State ex rel. Beatrice Newport v. Parks, 143 Fla. 901 (Fla. 1940)
- Bruce v. Am. Dev. Corp. & Kenneth Mamula, 408 So. 2d 857 (Fla. 3d DCA 1982)
- Tutko v. Clyde M. Banks, 167 So. 2d 110 (Fla. 3d DCA 1964)
- Belk v. Oehlert, 324 So. 2d 668 (Fla. 4th DCA 1975)
- Williams v. Stewart, 424 So. 2d 206 (Fla. 2d DCA 1983)