W. M. BLUE, PLAINTIFF IN ERROR,
v.
IDA M. STATEN, DEFENDANT IN ERROR
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In this commission recovery case, the Florida Supreme Court reversed a jury verdict awarding plaintiff commissions for effecting a real estate sale. The court held that the evidence did not support the verdict on either theory presented—that plaintiff procured the purchaser or that her efforts contributed to consummating the sale.
The judgment for plaintiff was reversed because the evidence did not support the verdict. The court found that plaintiff did not procure the original purchaser, and the majority held that the evidence also did not support the alternative theory that her efforts contributed to consummating the sale.
“Because two causes of action are contained in one count, the declaration would have been amenable to objections upon the ground of duplicity if the point had been raised.”
Establishes that the plaintiff's declaration improperly combined two distinct causes of action in a single count, though the defect was waived by not being raised before verdict.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePlaintiff sought commissions for finding a purchaser and effecting a sale of defendants' Hillsborough County land at an agreed price per acre. Plainti…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Recovery Of Commissions cases and more on FLexlaw
West, J.
This is an action for the recovery of commissions alleged to have been earned by plaintiff in procuring a purchaser and effecting a sale of certain lands belonging to defendants located in Hillsborough County.
The cause of action declared upon in the .first count of plaintiff’s declaration is that “the defendants * * * employed .the said plaintiff to find and procure for the said defendants a purchaser for said lands” at and for a stated price per acre; that plaintiff “found, procured and produced a purchaser for the said lands at the price * * * agreed upon;” that a sale of the lands of said defendants to a purchaser named “was brought about and consummated through the efforts of the plaintiff in that behalf; ’ ’ and that notwithstanding the consummation of said sale, defendants have not paid the plaintiff the commissions, or any part thereof, agreed by them to be paid and earned by her. The declaration also contains several common counts in assumpsit.
Pleas were filed and upon a trial verdict and judgment were for plaintiff, to review which writ of error was taken. When plaintiff rested her case, upon motion of counsel in their behalf the suit was dismissed as to all defendants except plaintiff in error. It is urged in behalf of plaintiff in error that the judgment should be reversed because it is not supported by the evidence. This argument rests primarily upon the assumption that plaintiff seeks to recover upon the theory that she • procured a purchaser for the property. The declaration, however, is not predicated upon that theory alone. It contains an allegation that plaintiff procured a purchaser for the property, but it also alleges that plaintiff affected a sale of the property. These are distinct causes of action. Wiggins, Admr. v. Wilson, 55 Fla. 346, 45 South. Rep. 1011; Elliott v. Gamble, 77 Fla. 798, 82 South. Rep.
253. Because two causes of action, are contained in one count, the declaration would have been amenable to objection's upon the ground of duplicity if the point had been raised. At common law this objection could have been raised by special demurrer only. 7 Enc. of Pl. & Pr. 243; Karnuff v. Kelch, 69 N.
J. Law 499, 55 Atl. Rep.
163. But in this jurisdiction special demurrers in common law actions have been abolished. Sec. 2627, Rev. Gen. Stats. of Fla.; Peacock v. Hargrave, 51 Fla. 269, 40 South. Rep.
74. The question could have been, presented by motion for compulsory amendment under the statute. Sec. 2630 Rev. Gen. Stat. of Fla.; City of St. Louis v. Weitzel, 130 Mo. 600, 31 S.
W. Rep. 1045; Karnuff. v. Kelch, supra. But not to present the point until after verdict is to waive it. 7 Standard Enc. of Proc. 947; Jacobs v. Pierce, 132 Ill. App. 547; Chicago West Div. R. R. Co. v. Ingraham, 131 Ill. 659, 23 N.
E. Rep. 350; Commonwealth v. Tuck (Mass.) 20 Pick. 361; Smith v. Latour, 18 Pa. St. 243; Central of Ga. Ry. Co. v. Banks & Fortson, 123 Ga. 785, 58 S.
E. Rep.
352. If either cause of action alleged is supported by the evidence the judgment should stand.
That the evidence does not support the verdict for plaintiff upon the theory that she performed a contract previously made' with defendant to procure a purchaser for the property, scarcely admits of any question..We do not understand that plaintiff contends now that she did procure the purchaser to whom the property was sold. It is contended in her behalf, however, that a sale of the property was effected to a purchaser procured by another and that her efforts in that behalf, for which she was to receive from defendant an agreed commission, contributed to a consummation of the sale. No benefit would result from a, recital of the evidence. The members of the court, except the writer, are of the opinion that the verdict and judgment are not supported by the evidence upon this theory of the case.
It is unnecessary to discuss questions of procedure, rulings upon which were made the basis of assignments of error. t
The-judgment is reversed.
Browne, C. J., and Whitfield and Ellis J. J., concur. Taylor, J., concurs in the result.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Knowles v. Henderson, 156 Fla. 31 (Fla. 1945)…ocured 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. 200, 137 So. 113; Weida v. Bacon; 102 Fl…
-
Mullis v. City of Miami, 60 So.2d 174 (Fla. 1952)…long enough for the city to know about it. That is the negligence they are alleging." The declaration was not attacked on the ground of duplicity, so that the duplicity, if any, in the declaration must be deemed to have been waived. Blue v. Staten, 84 Fla. 274, 93 So. 686; Florida East Coast Ry. Co. v. Anderson, 110 Fla. 290, 148 So. 553. On the general question of the defendant's liability, we think there was sufficient testimony to require the submission of this question to the jury. "While a city is n…
-
Smith v. Shackleford, 92 Fla. 731 (Fla. 1926)…rchaser” 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 bind his principal in the sale of land may be infe…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wiggins v. Solon G. Wilson and Clarence A. Boswell, 55 Fla. 346 (Fla. 1908)
- Peacock v. Feaster, 51 Fla. 269 (Fla. 1906)
- Elliott v. Breckenridge Gamble, 77 Fla. 798 (Fla. 1919)