J. R. Squires, Plaintiff in Error, v. Forest Kilgore, Defendant in Error, 92 Fla. 1001

Brown, J. The defendant in error, plaintiff in the court below, obtained a judgment against the plaintiff in error for a real estate agent’s commission in the sum of $1650.00; which judgment was brought before us for review on writ of error. The declaration was in two counts, each count alleging that the defendant had employed the plaintiff to find a purchaser for certain described real estate at and for the total sum of $33,000.00, for which the defendant was to pay the plaintiff a commission of five per cent on such purchase price; that the plaintiff did secure a purchaser for said property, one A. T.

Carter, who was ready, able and willing to purchase said property and contracted and agreed to purchase the same upon the terms agreed to by the plaintiff. The first count stated the terms to be $33,-000.00, $3,000.00 to be paid in cash, and the balance in deferred payments to bear interest at the rate of eight per cent per annum, without particularizing the maturities and amounts of the deferred payments.

The second count alleges the terms to have been $33,000.00, $3,000.00 in cash at the time of the delivery of contract, and the maturities- and amounts of the deferred payments are particularized, covering a period of some six years, all such deferred payments to bear interest at the rate of eight per cent; also alleging that the defendant agreed to place a good and sufficient warranty deed conveying said property in escrow, together with a contract of sale. Pleas of the general issue and several special pleas were interposed to each count.

It is contended that the court below erred in denying defendant’s motion for new trial upon the ground of insufficiency of evidence to support the verdict, the particular contention being that the declaration claims a commission for finding a purchaser ready, able and willing to buy on the recited terms, whereas the testimony showed that the plaintiff was employed to sell the property.

It is true that a clear distinction is drawn, in the case of Wiggins Wilson, 55 Fla. 346, 45 Sou. 1011, between the employment of a broker to find or procure a purchaser for the property of another and his employment to effect a sale of such property. It was held in the cited case that a broker employed to sell, that is to effect a sale, as distinguished from one employed merely to find a purchaser, is not entitled to compensation until he effects a sale or procures from his customer a binding contract of purchase within the terms of his authority. See also Varn v. Pelot, 55 Fla. 357, 45 So. 1015; Elliott v.

Gamble, 77 Fla. 798, 82 So. 253; Cumberland Savings and Trust Company v. McGriff, 61 Fla. 159, 54 So. 265.

It is quite clear that a broker who is employed to effect or consummate a sale does not comply with his contract by merely finding a purchaser who is ready, able and willing to buy on the terms prescribed by the owner, unless he actually effects the consummation of the sale or procures from his customer a valid contract of purchase within the terms of his authority; but it may be that a broker employed to find a purchaser would be entitled to commission if he not only found and produced a purchaser who was ready, able and willing to buy on the terms prescribed by the owner but who actually did buy, or entered into a binding contract of purchase within the prescribed terms.

In such latter case, a declaration setting up employment of the plaintiff broker to find a purchaser, ready, able and willing to buy, might be sustained, and there would be no valid objection to the plaintiff’s right to recover merely because the evidence showed that he not only performed his contract but did more than it required.

If this be correct, it might be that a declaration claiming a broker’s commission for finding a purchaser, ready, able and willing to buy might be sustained by proof of his employment to sell, and evidence that he found and produced a purchaser, ready, able and willing to buy on the terms authorized by the owner and that the sale would have been consummated had not the defendant failed or refused to go on with the trade. An agreement to sell property for another necessarily implies an agreement to find a purchaser — otherwise a sale could never be made — and the greater includes the lesser.

However, it is not necessary for us to here decide this question. A careful reading of the evidence shows that the jury was not without a basis therein for finding that the plaintiff in this case was employed to find a purchaser. It is true the plaintiff testified in one place that the defendant agreed that he might sell the property and named the price at $35,000.00, including the fixtures; but immediately succeeding this testimony, the plaintiff also testified that he at once agreed to find a purchaser and that the defendant subsequently reduced the price of the property without the fixtures to $33,000.00.

The lower court will not be held in error for denying the motion for new trial on that ground. As was said in Varn v. Pelot, supra, “While perhaps it is more usual for agreements between property owners and real estate brokers to be express, there is nothing in the employment to prohibit absolutely implied promises.” Considering all the evidence introduced in behalf of the plaintiff, it conlcl hardly be said that there was no evidence from which the jury could have found that there Avas an agreement between plaintiff and defendant of the character described in the declaration.

It is next insisted that the court erred in admitting in evidence over the objection of the defendant two typewritten statements or memoranda purporting to set forth the terms of sale, but which were not signed.

The plaintiff testified that the first of these statements was written out by him in the presence of the defendant, on the defendant’s typewriter and stationery, after a conversation in which they had agreed upon the terms upon which the property was to be sold; that after he had written out this memorandum, he handed it to the defendant to read, and after reading it the defendant stated that it was “perfectly acceptable.” The defendant objected to the introduction of this memorandum upon the ground that it was not signed by Mr.

Squires, that it was not in the terms upon which they finally agreed, nor the terms stated in the declaration, and that it was merely a self-serving declaration. Counsel for plaintiff stated that the document Avas offered to show acquiescence of the defendant in the deal and his participation in attempting to arrive at a final agreement as to what the terms would be, and that it was not offered as the final contract. The court stated that it would be admitted for that purpose only.

It seems from plaintiff’s evidence that the prospective purchaser, a customer of the plaintiff, did not agree to these terms in full, and that they were afterAvards modified; that plaintiff then returned to the defendant and obtained his consent to the modified terms, whereupon the plaintiff wrote out in defendant’s presence and on his typewriter another document stating the terms in detail as he claims they had been stated and agreed to by the defendant at the time. The last document referred to is .in the form of an agreement of sale and recited the existence of certain encumbrances on the property.

Plaintiff testified that the last document contained some information given him by the defendant at the time, with which he was not familiar, but that he did remember, and attempted to testify to, independently of the memorandum, the terms of sale as to. cash and deferred payments, and plaintiff further testified that the latter document was also written on same typewriter in the defendant’s presence, was a correct statement of what had just been agreed upon, and was read and approved by the defendant, at the time, as correct, and that these were the terms on which lie procured the purchaser, ready, able and willing to buy.

Plaintiff also testified that he did not ask the defendant to sign either of these documents. Defendant admitted that the second memorandum was written in his office and on his typewriter, though he did not approve it because it did not correctly state the terms, but denied that the first paper was written in his office and on his typewriter, and denied also its correctness as a statement of the terms.

The defendant objected to the admission in evidence of this paper upon the ground that it was a self-serving declaration, that defendant had refused to and had not signed the same, and that it was immaterial to admit in evidence one paper to be compared with another; that the method of proof is by experts.

The plaintiff offered this document as part of the transaction testified to by plaintiff; also to show the date or time of writing as corresponding with the time of the conference testified to by plaintiff, and also for the purpose of a comparison of the typewriting with that of the other document, and stated that the paper was not introduced upon the claim that it was a contract. The court admitted it in evidence.

Of course, neither of these papers was of any probative force or value unless the jury believed the testimony of the plaintiff to the effect that they were agreed to or approved by the defendant in containing an acceptable statement of the terms upon which he was willing to sell the property, but if the jury so believed plaintiff’s evidence, as it was within their province to do, the memorandum would certainly be helpful evidence. If the jury should have disbelieved the plaintiff’s testimony as to defendant’s approval of the papers, they certainly would not have given them any weight.

But there can be no doubt of the admissibility of these papers, taken in connection with plaintiff’s testimony as to their approval by defendant. The prevailing rule on this subject, supported by citations of decided cases, is set forth in 22 C.

J., page 896, Sec. 1093, as follows: “A memorandum relating to the terms of a parol contract made at the time by one of the parties negotiating the contract and read over to the other without dissent, or made by a third person under circumstances showing an assent thereto by the parties, although not in itself a valid written contract, may be competent as substantive evidence tending to establish, in connection with other evidence, the terms of the contract.

But the memorandum is not admissible if it was not made under the direction of both the parties or subsequently approved by them.” This rule is supported, by implication at least, by several decisions of this Court, viz., Germania Fire Ins. Co. v. Stone, 21 Fla. 555; Dixie Fire Ins. Co. v. Hillsborough Dry Goods Co., 77 Fla. 250, 81 So. 446.

This rule need not be confused with the familiar rule that memoranda made by a witness at the time or about the time of a transaction and which he knew at the time to be correct, can be referred to by the witness to refresh his recollection; then if he can testify to the facts independently of the memorandum, he may do so, and his ex parte memorandum is not itself admissible in evidence.

If, after attempting to refresh his memory by reference to the memorandum, he has no independent recollection but can testify that he made the memorandum contemporaneously with the transaction, that he knew the facts at the time he made it, and that he correctly noted them in such memo at the time, the memorandum itself becomes admissible. See 22 C. J. 893-986. We find no reversible error in the record and the judgment of the court below is affirmed. Affirmed. Terrell, Strum and Buford, J. J., concur. Ellis, C. J.," dissents.