
    KELLY v. SCHMIDT, et ux.
    Circuit Court, Palm Beach County.
    September 28, 1955.
    
      Farish & Farish, West Palm Beach, for plaintiff.
    Caldwell, Pacetti, Robinson & Foster, West Palm Beach, for defendants.
   JOSEPH S. WHITE, Circuit Judge.

This cause came on for the entry of final decree on the pleadings, testimony taken orally before the court, and argument of counsel.

The respective rights and obligations of the parties are fixed by express written contract filed in evidence as plaintiff’s exhibit 1. Thereby the defendants, Schmidt and wife, agreed to pay the plaintiff “as commission, the sum of $4,250 or one half of the deposit, in case it is forfeited by purchasers, provided the same shall not exceed the full amount of the commission.”

By their conduct in repudiating the contract and refusing to accept the transfer on the agreed date, the purchasers forfeited the deposit. The deposit, in fact, was only $3,500 and not actually $8,500 as represented in the agreement. Under the circumstances the only fair and equitable interpretation of the agreement is the holding of the sellers liable for no more than one-half of the actual deposit.

The acceptance of a personal check from a prospective purchaser drawn on a foreign bank, rather than a safer mode of payment, under circumstances such as those shown here, should be the responsibility of the broker. The principal for whom the broker acts should not be made to suffer the consequences if the check is dishonored.

It is ordered and decreed that the plaintiff is entitled to one-half of said sum of $3,500, and the defendants, Schmidt and wife, are entitled to one-half thereof; that immediately upon the expiration of 10 days from this date, the clerk shall disburse the moneys in the registry of the court accordingly, giving plaintiff credit for $300 previously paid said defendants on account of their one-half, part of said sum. The clerk may first deduct any sums owing on account of court costs. Court costs are assessed one-half against the plaintiff and one-half against the defendants.  