
    James F. PERRIN and Barbara Jan Perrin, Appellants, v. SAM KAYE, INC., Appellee.
    No. 76-1208.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.
    J. Brian Brennan, of Brennan, Brown & Avery, West Palm Beach, for appellants.
    Howard M. Antevil, Palm Beach, and Frank J. McKeown, Jr., of Cone, Owen, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a summary judgment entered against the Appellants in a suit brought by the Appellee to recover a real estate commission.

The Perrins, as sellers, and Sam Kaye, Inc., as real estate broker, entered into an exclusive listing agreement. In return for the Appellee’s promise to use its best efforts to find a buyer the Appellants agreed to list their home exclusively with the Ap-pellee for three months and thereafter until revoked by ten days’ written notice.

It is alleged Appellants executed an exclusive right of sale with another broker prior to the effective revocation of the exclusive listing agreement with the Appellee. The property was sold thru the second broker and the Appellee sued for its commission.

In their answer, the Appellants denied the statement in the complaint that the Appellee used its best efforts to find a buyer and otherwise performed all the conditions of the exclusive listing agreement. Appellee moved for summary judgment without offering any affidavits in support of its allegation of full performance. The trial court granted the motion and judgment was entered against the Appellants. Since factual question of failure of consideration remains the trial court was precluded from the entry of the summary judgment and erred in doing so. A.B.G. Investment, Inc. v. Selden, Jr., 336 So.2d 444 (Fla. 4th DCA 1976); Cook v. Martin, 330 So.2d 498 (Fla. 4th DCA 1976).

REVERSED and REMANDED.

ALDERMAN, J., concurs.

LETTS, J., concurs specially, with opinion.

LETTS, Judge,

specially concurring.

Without in any way disagreeing with Judge Dauksch, I would add that the answer and counterclaim filed by the property owner, alleged with crystal clarity that the property owners did not have any dealings with any other broker until after the expiration of the period covered by the exclusive right of sale agreement. Moreover, the date of the eventual sales contract, procured through the efforts of another broker, is alleged to be dated after said expiration date. Further, the property owner has inclyided an affidavit to confirm all of the foregoing.

It is true that the requests for admissions filed by the broker (and which were admitted) might have been construed by the trial judge to be an admission by the property owner that the original exclusive listing agreement was still in force on the date when the eventual contract of sale was entered into; however, said admissions are really only confirming what the exclusive listing contract purported to say under its own terms, and such is not an admission that the contract remained in force after the expiration date claimed by the property owner.

There is also a question of mixed law and fact as to what the parties intended under the original exclusive right of sale agreement, the relevant printed portion of which stated:

I hereby give [the broker] for a period of _months from this date (and thereafter until this agreement is revoked by ten day’s written notice delivered to you) the sole right and authority to find a purchaser .

Into the blank space in the above quoted passage has been inserted the arabic numeral “3”, and the property owner is claiming that it was a three month exclusive which he gave. The broker, on the other hand, is claiming that the exclusive listing was forever until revoked in writing. It would be inappropriate at this juncture to rule on that, but suffice it to say that it is not clear to me that this contract should be interpreted to continue in perpetuity, and the wording is not susceptible to a summary judgment in favor of the broker in the light of the property owner’s affidavit to the contrary.

As to the question of whether or not a broker may file his lis pendens to assist him collect a brokers commission, in the light of § 475.42(1)(j) Florida Statutes (1975), such is moot in this case, as appellants themselves admit. Accordingly, we need not pass on this question, except to note that if appellants want their pound of flesh in this regard, as indeed they appear to, then an ideal forum in this instance would be the Florida Real Estate Commission.  