F. C. ELLIOTT, PLAINTIFF IN ERROR,
v.
BRECKENRIDGE GAMBLE, DEFENDANT IN ERROR
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Elliott sued Gamble for commissions on a real estate sale, alleging he had produced a willing and able purchaser but Gamble refused to convey. The Florida Supreme Court reversed the trial court's overruling of a demurrer, holding that the complaint failed to allege an essential element: that the proposed purchaser had entered into a binding contract.
The complaint failed to state a valid cause of action for broker's commissions. The distinction between a contract to sell and a contract merely to procure a purchaser is material; the complaint must allege that the purchaser entered into a binding contract, not merely that he was ready, willing and able to purchase.
“The distinction between a contract to sell and one to procure a purchaser is discussed in Wiggin v. Wilson”
Establishes that the court applied precedent distinguishing between two types of contracts relevant to broker commission claims
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Join FLexlaw to unlock all legal intelligenceElliott alleged that he was employed to sell real estate and that he produced a purchaser ready, willing and able to purchase the property. However, G…
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Bullock, Circuit Judge.
— This is an action to recover commissions for selling real estate. The declaration is in two counts. The second count having beén abandoned, the trial was had on the first, which alleged that the plaintiff in error was employed to sell, and that he produced a purchaser, ready, willing and able to purchase, but defendant refused to convey. The demurrer to this count was overruled.
The distinction between a contract to sell and one to procure a purchaser is discussed in Wiggin v. Wilson, 55 Fla. 346, 45 South. Rep. 1011. This count fails to allege that the proposed purchaser entered into any contract that would bind him to take and pay for the property. Following the views of this court as expressed in the case of Wiggins v. Wilson, supra, we think the court below erred in overruling demurrer to the first count of the declaration.
This decision has been followed since that time in Varn v. Pelot, 55 Fla. 357, 45 South. Rep. 1015, and several other decisions not necessary to be cited.
In views of the conclusion that is reached as to the declaration, it is not necessary to consider the other assignments of error. The judgment below should be reversed with directions to sustain the demurrer to the said count, and for such further proceedings as may be in accordance with law.
Per Curiam.
— -The record in this cause having been considered by this court, and the foregoing opinion, prepared under Chapter —, Acts of 1919, adopted by the court as its opinion, it is considered, ordered and adjudged by the court that the judgment herein be and the same is hereby reversed.
Bbowne, C. J., and Taylob, Whitfield, Ellis and West, JJ., concur.
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Knowles v. Henderson, 156 Fla. 31 (Fla. 1945)…has also actually effected the sale or procured from the prospective purchaser a binding contract of purchase within the terms of his authority. Wiggins v. Wilson, 55 Fla. 346, 45 So. 1011; Varn v. Pelot, 55 Fla. 357, 45 So. 1015; Elliott v. Gamble, 77 Fla. 798, 82 So. 253; Blue v. Staten, 84 Fla. 274, 93 So. 686; E. A. Strout Farm Agency v. Hollingsworth, 92 Fla. 673, 110 So. 267; Squires v. Kilgore, 92 Fla. 1001, 111 So. 113; Malever v. Livingston, 95 Fla. 272, 116 So. 15; Livingston v. Malever, 103 Fla.…
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Malever v. Livingston, 95 Fla. 272 (Fla. 1928)…is the true meaning of the holding and opinion in Wiggins v. Wilson, supra., is indicated by our own subsequent cases. See Varn v. Pelot, 55 Fla. 357, 45 So. 1015; Cumberland Saving & Trust Co. v. McGriff, 61 Fla. 159, 54 So. 265; Elliott v. Gamble, 77 Fla. 798, 82 So. 253; Squires v. Kilgore, 111 So. 113, 92 Fla. 1001. The case of Rhode v. Gallat, 70 Fla. 536, 70 So. 471, might be read in this connection. This construction is also borne out by the case of Ormsby v. Graham, 123 Ia. 202, 98 N. W. 724, cited…
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Smith v. Shackleford, 92 Fla. 731 (Fla. 1926)…on between an employment “to find or procure a purchaser” and an employment to “effect a sale.” See also Cumberland Savings & Trust Co. v. McGriff, 61 Fla. 159; 54 South. Rep. 265; Carter v. Owens, 58 Fla. 204; 50 South. Rep. 641; Elliott v. Gamble, 77 Fla. 798; 82 South. Rep. 253; Blue v. Staten, 84 Fla. 274; 93 South. Rep. 686; Sullivan v. Brown, 67 Fla. 133, 64 South. Rep. 455; Pensacola Finance Co. v. Simpson, 82 Fla. 368; 90 South. Rep. 381. But this Court has never held that an agent’s authority to b…
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- Wiggins v. Solon G. Wilson and Clarence A. Boswell, 55 Fla. 346 (Fla. 1908)
- Grover C. Varn v. Pelot, 55 Fla. 357 (Fla. 1908)