IRVIN SHERMAN, APPELLANT,

v.

S. A. LYNCH, JR., APPELLEE

Fla. 3d DCA | 1970-12-29

No. 70-116

Before PEARSON, C. J., and BARK-DULL and SWANN, JJ.

242 So. 2d 799 Florida District Court of Appeal, Third District (1970) Caution

Cited by 6 cases

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.

Holding

The court held that the trial court correctly entered a judgment notwithstanding the verdict because the plaintiff-broker failed to establish essential elements of his claim, including an agreement with the owner and a valid brokerage contract.

Headnotes

[1] A real estate broker must demonstrate an agreement with the property owner to recover a commission.

[2] A broker's claim for a commission fails if the evidence does not establish that a third party was the owner's agent authorized to list the property.

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Facts & Procedural History

A plaintiff-broker sued for a commission based on an alleged oral cooperating agreement with another broker who represented the defendant-owner. The p…

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Topics

Agent'S Authority Right Of First Refusal Motion For Directed Verdict Consideration

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Opinion of the Court

PER CURIAM.

By this appeal, the plaintiff seeks review of a judgment non obstante vere-dicto. Having made a motion for directed verdict at the close of all the evidence, the appellee’s motion should have been a “Motion For Judgment In Accordance With Motion For Directed Verdict”. See Rule 1.480(b), Florida Rules of Civil Procedure, 30 F.S.A., as referred to in De Mendoza v. *800Board of County Commissioners, Fla.App.1969,221 So.2d 797.

In this real estate brokerage action, the plaintiff-broker contended that his office had an oral cooperating agreement with a broker by the name of Shuey who was, in fact, the agent of the defendant-owner of the Columbus Hotel and that his salesman, Harris, produced a prospective purchaser [one Swigg] who was given a binding right of first refusal to purchase the hotel.

We find, from the undisputed evidence, that the trial judge was correct in the judgment1 here under review for several reasons. First, the evidence failed to indicate any agreement between the broker [Sherman] and the owner [Lynch], Estes v. Moylan, Fla.1957, 94 So.2d 362; Ivy Jay Corporation v. Davis, Fla.App.1964, 160 So.2d 715; Martin v. Allen, Fla.App.1967, 200 So.2d 243. Second, the evidence fails to show that Shuey was, in fact, the agent or employee of Lynch authorized to give a listing on the hotel. Griffin v. Societe Anonyme la Floridienne, 53 Fla. 801, 823, 44 So. 342; Martin and Sutherland v. Johnson, 54 Fla. 487, 44 So. 949; Aerovias Panama v. Air Carrier Engine Service, Inc., Fla.App.1967, 195 So.2d 230. Third, the evidence failed to indicate any valid agreement between the broker [Sherman] to cooperate on any listing which may have been held by the broker [Shuey] as Harris could not validly enter into a brokerage contract. Byrne v. Peoples’ Bond & Mortgage Co., Inc., E.D.Penn.1951, 99 F.Supp. 195; Walker v. Meyer, 167 La. 218, 119 So. 26; Miller v. Ziedrich, 199 Or. 505, 263 P.2d 611; § 475.42(1) (b) (d), Fla. Stat.,2 F.S.A. Harris could not maintain an action directly against Shuey or Lynch. Seid v. Graham, Fla.App.1961, 131 So.2d 507; Campbell v. Romfh Bros., Inc., Fla.App.1961, 132 So.2d 466; § 475.42(1) (b) (d), Fla.Stat., F.S.A. It is also apparent that even if there had been a valid cooperating agreement between the brokers, there was no consideration for the alleged right of first refusal and, without same, if the hotel was sold without tendering the right of first refusal there was no cause of action. Melvin v. West, Fla.App.1958, 107 So.2d 156; 1A Corbin on Contracts, § 261. And lastly, the record fails to indicate that Swigg, the alleged prospective purchaser was in fact a “purchaser, ready, willing, and able” to buy under the test set forth by the Supreme Court in the case of McAllister Hotel, Inc. v. Porte, Fla.1957, 98 So.2d 781. See also: Kernjack v. Joe Cotton Realty Corporation, Fla.App.1968, 216 So.2d 18; Froedtert v. Haines, 5th Cir. 1944, 142 F.2d 338; Skene *801v. Carayanis, 103 Conn. 708, 131 A. 497; Herbert v. Jaffe, 281 Mass. 202, 183 N.E. 259.

By cross-assignment, the appellee has duly preserved his point on the alleged error of the trial judge in failing to grant a new trial pursuant to Kaufman v. Sweet et al. Corp., Fla.App.1962, 144 So.2d 515; Cf. Dudley v. Harrison, McCready & Co., 127 Fla. 687, 173 So. 820, on rehearing 128 Fla. 338, 174 So. 729. But, in view of what is set forth in respect to the appellant’s points on appeal, this cross-assignment has not been considered.

Therefore, for the Reasons above stated, the judgment non obstante veredicto be and the same is hereby affirmed.

Affirmed.

. Said judgment reads, in part, as follows:

* i<5 * * *

“ * * * The undisputed evidence shows that the plaintiff broker, Irvin Sherman, was not employed by the defendant, nor did the defendant agree to pay plaintiff a commission. The evidence further shows that John E. Shuey, a broker, was employed by defendant to sell the Columbus Hotel, and that John E. Shuey did solicit the services of Milton Harris, a salesman for the plaintiff broker, and agreed to pay Milton Harris a commission in the event of a sale of the hotel. The salesman contended that his prospect was given a right of first refusal and while the prospect was in the process of inspecting the hotel, it was sold by the owner to another, and the broker, Irvin Sherman, sued to recover a commission.

“Under the provisions of Section 475.42, Florida Statutes [F.S.A.], it appears that under the facts adduced at the trial of this cause, employment by the broker, John E. Shuey, of Milton Harris, the salesman for broker, Irvin Sherman, and any agreement by Shuey to pay Harris a commission, would be prohibited. Byrne v. Peoples’ Bond & Mortgage Co., [D.C.] 99 F.Supp. 195, Walker v. Meyer, 167 La. 218, 119 So. 26, Rosen-thal v. Art Metal, Inc., [101 N.J.Super. 156] 243 A.2d 828.”

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

Kikis v. Ford Motor Co., 386 So. 2d 306 (Fla. 5th DCA 1980)

…r judgment notwithstanding a jury verdict was granted. The effect of the order was to grant the defendant’s motion for judgment in accordance with motion for directed verdict. Tolliver v. Loftin, 155 Fla. 769, 21 So. 2d 359 (1945); Sherman v. Lynch, 242 So. 2d 799 (Fla.3d DCA), cert. denied, 246 So. 2d 788 (1971). See also L.C. Morris, Inc. v. Allison, 353 So. 2d 135 (Fla.3d DCA), cert. denied, 359 So. 2d 1210 (1978). Both the order granting the directed verdict and the judgment for the defendant are in one…
L. C. Morris, Inc. v. Allison, 353 So. 2d 135 (Fla. 3d DCA 1977)

…ting appel-lees’ motion for directed verdict and judgment notwithstanding the jury verdict. [We note that the proper motion pursuant to Fla.R.Civ.P. 1.480(b), is a motion for judgment in accordance with motion for directed verdict. Sherman v. Lynch, 242 So. 2d 799 (Fla. 3d DCA 1970)]. Therefore, the judgment entered by the trial court is reversed and the cause is remanded with instructions to reinstate the jury verdict in favor of appellant. Reversed and remanded with instructions.…
Sherman v. Lynch, 246 So. 2d 788 (Fla. 1971)

…Certiorari denied. 242 So. 2d 799. ROBERTS, C. J., and CARLTON, ADKINS and DEKLE, JJ., concur. ERVIN, J., dissents.…

Authorities Cited (17 total)

Dudley v. Harrison, 127 Fla. 687 (Fla. 1937)
McALLISTER Hotel, Inc. v. Porte, 98 So. 2d 781 (Fla. 1957)
Griffin v. Societe Anonyme la Floridienne, 53 Fla. 801 (Fla. 1907)
Sophronia I. Estes v. Moylan, 94 So. 2d 362 (Fla. 1957)
Irma Kaufman and her husband Harry Kaufman v. Sweet, 144 So. 2d 515 (Fla. 3d DCA 1962)
Martin v. Johnson, 54 Fla. 487 (Fla. 1907)
de Mendoza v. Bd. OF Cnty. Comm'rs, 221 So. 2d 797 (Fla. 3d DCA 1969)
Dudley v. Harrison, 128 Fla. 338 (Fla. 1937)
Aerovias Panama v. AIR Carrier Engine Serv., Inc., 195 So. 2d 230 (Fla. 3d DCA 1967)
Campbell v. Romfh Bros., Inc., 132 So. 2d 466 (Fla. 2d DCA 1961)

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