E. A. Strout Farm Agency, a Corporation, Plaintiff in Error, v. J. S. Hollingsworth, Defendant in Error, 92 Fla. 673

Brown, C. J.

The amended declaration alleged that the defendant entered into a written listing contract, "a copy of which is hereto attached as plaintiff’s exhibit A,” by the terms of which the defendant employed the plaintiff to procure a customer ready, able and willing to buy certain lands, and by said listing contract did agree that, "if a customer is procured through you or your agents, on terms as herein stated, or at a price and upon terms acceptable to me, I will pay you forthwith as commission ten per cent of the selling price. ’ ’ That pursuant to said contract plaintiff through its agents at Arcadia, Florida, offered the property for sale to its customers, Bail and Mershon, at a price and upon terms acceptable to the defendant, whereupon said customer and purchasers did stand ready, able and willing to buy defendant’s property for $2500.00 cash, $2500.00 on delivery of deed, and balance in four equal annual payments secured by notes and mortgages bearing 8 per cent, this being the price and terms indicated and accepted by defendant, and that said purchasers executed a sale and purchase contract to that effect, at the price and on the terms acceptable to and dictated by the defendant, “a copy of which is attached hereto as a part hereof, and marked plaintiff’s exhibit B,” and that the purchasers tendered their cash payment of $2500.00 along with said contract, but that defendant arbitrarily refused to consummate the said deal.

That said customers were then, and at all times thereafter up to the filing of suit, ready, able and willing to buy the property at said price and terms. That plaintiff had performed its duty under the contract, and that under said contract defendant is due the plaintiff $2500, being 10 per cent of the aforesaid selling price, which defendant has on demand refused to pay, to plaintiff’s damage, etc.

The defendant demurred inter alia upon the grounds (1) that the amended declaration failed to show whether the plaintiff was claiming a commission for selling the property, or for finding a purchaser for same; (2) that the pleading attempts to vary the terms of a written contract; (3) that it attempts to charge the breach of a written and a parol contract, and (4) states no cause of action. The court sustained the demurrer, and the plaintiff declining to plead further, judgment was rendered in favor of the defendant.

The demurrer is evidently based upon the assumption that both the exhibits referred to in the declaration form a part thereof. This assumption is not correct as to Exhibit “A.” This exhibit is referred to in the amended declaration, and it is stated that a copy is attached thereto, but this alone is not sufficient to make it a part of the declaration. The rule is that it can only be made a part of the pleading by “apt words,” and unless this is done, a demurrer to the pleading does not reach the exhibit, nor a copy of the “Cause of action” filed with the declaration. Hoopes v. Crane, 56 Fla. 395, 47 South.

Rep. 992; State v. Seaboard Air Line Ry., 56 Fla. 670, 47 South. Rep. 986; Milligan v. Keyser, 52 Fla. 331, 42 South. Rep. 367; Royal Phosphate Co. v. VanNess, 53 Fla. 135, 43 South. Rep. 916; 31 Cyc. 560. Exhibit “B,” the purchase and sale contract, is made a part of the pleading by sufficiently apt words. This document does not contain a legal description of lands, which are merely described therein as “160 acres more or less in

Section 5, Township 37, Range 25 East. ’ ’ The declaration alleged a more or less detailed description of the lands, but failed to show the County or State of their location. This incomplete description of the lands in the listing contract would not necessarily be fatal in a suit for commission for procuring a purchaser under such contract as that declared on, which did not obligate the plaintiff to secure a legally binding contract of purchase.

But Exhibit B further purports to show that the prop- . erty agreed to be purchased consisted not only of 160 acres of land, but also of a considerable amount of described personal property, consisting of certain farm implements, all crops ‘ ‘ on farm, ’ ’ Delco lighting plant in residence, etc.

But this variance is not fatal to the statement of a good cause of action for a commission in view of the allegation in the amended declaration that the purchase contract so executed was "at a price and on terms acceptable to and dictated by” the defendant, in view of the fact that the amended declaration also alleged that the defendant agreed, in the listing contract, that if the plaintiff procured a customer, either on the terms stated in the contract, or “at a price and up terms acceptable to the defendant,” plaintiff would be entitled to a ten per cent commission on the "selling price.” The declaration as amended does not sue for a commission for selling the property, but for procuring for the owner a customer ready, able and willing to buy the property on terms and at a price acceptable to the owner.

If the terms so accepted and agreed to by the owner contemplated that certain personal property should go along with the land described in the listing contract, this would not defeat the broker’s right to a commission under such contract clause as is set up in the pleading. See Moore v. Williamson, 213 Ala. 274, 104 South, Rep. 645, 42 A. L. R. 981, 987, which, while not directly in point, has some bearing on the question.

That part of the listing contract which is before us, being that alleged in the declaration, the remainder not being reached by the demurrer, entitled the plaintiff to a commission upon the procurement of a customer ready, able and willing to buy the real estate described upon price and terms acceptable to the owner, and the declaration substantially shows performance of such contract on the part of the plaintiff.

Of course, there is a well recognized distinction between a contract to effect a sale, and a contract to procure a purchaser, ready, able and willing to buy, and the two causes of action should not be included in the same count. See Wiggins v. Wilson, 55 Fla. 346, 45 South. Rep. 1011; Varn v. Pelot, 55 Fla. 357, 45 South. Rep. 1015; Elliott v. Gamble, 77 Fla. 798, 82 South. Rep. 253; Pensacola Finance Co. v. Simpson, 82 Fla. 368, 90 South. Rep. 381.

Where both of such distinct causes of action are embraced in the same count, it renders the same duplicitous, and subject, not to demurrer, but to a motion for compulsory amendment under the statute. Blue v. Staten, 84 Fla. 274, 93 South. Rep. 686.

Where a declaration alleges an agreement by defendant to pay a 10 per cent commission to plaintiff for procuring a customer .ready, able and willing to purchase certain lands of the defendant, at a price and on terms acceptable to the defendant, and a customer is procured who is ready, able and willing to buy the land with the addition of certain personal property of the defendant at a price on terms acceptable to the defendant, the price agreed on covering both the land and certain personal property; query, should not the amount of the broker’s commission be calculated on the basis of the total price less the value of the personal property ?

It is true that where a real estate broker agrees to effect a sale at a fixed minimum price, the introduction by him of one who subsequently purchases at a reduced price, does not ordinarily entitle such broker to a commission. Varn v. Pelot, supra (which might be considered in connection with Pensacola Finance Co. v. Simpson, supra). But this principle is obviously not applicable to an agreement such as that set up in the amended declaration.

If there be any provision of the listing contract which nullifies or modifies that part of the contract declared on, or if the contract as a whole has such effect, the defendant can take advantage of this by proper plea. See

Section 2626 Rev. Gen. Stats. 1920. The amended declaration does not wholly fail to state a cause of action, and the court erred in sustaining the demurrer thereto. It is not necessary to consider the action of the court on the demurrer to the original declaration. For the error pointed out, the judgment of the court below must be reversed and the cause remanded. It is so ordered. Whitfield, Strum and Buford, J. J., concur.