
    Jack W. DARRACOTT, Appellant, v. J. M. HEMPHILL and H. H. Hemphill, Appellees.
    Supreme Court of Florida. En Banc.
    Nov. 16, 1955.
    
      Henry P. Trawick, Jr., of Surles & Tra-wick, Lakeland, for .appellant.
    Gordon Petteway of Smith & Petteway, Lakeland, and E.-P. Martin, Plant City, for appellees.
   THORNAL, Justice.

Appellant Darracott, a real estate broker suing for a commission, 'appeals from an adverse ruling of the trial Judge in favor of the defendant-owners upon a motion for summary judgment. ' .

By his complaint the appellant, plaintiff below, alleged that he held a “listing” on certain property owned by the appellees, and that he' was to receive a commission for producing a purchaser ready, willing and able to buy on the terms stipulated. He further alleged that after continuous negotiations, he did secure a purchaser who bought a part of the tract and that upon the closing of the transaction, he became entitled to a commission on the sales price of the part sold. Suit was filed when the ap-pellee-owners refused to pay the commission.

Appellees deny that the sale of a portion of the land resulted from continuous negotiations conducted by the appellant and contend that the sale was not produced by his efforts. The testimony and stipulation reveal that the tract consisted of 27 acres of citrus grove which the appellees offered for $75,000. Appellant contacted the County Board of Public Instruction and through a misunderstanding represented that the land consisted of 37 acres. The Board declined to pay $75,000, and the' owners, through the broker, thereupon submitted a price of $71,500 net. When the Board expressed interest in buying the "property at the lower price, the error in the.representation as to total acreage was discovered and the Board then refused to buy. The appellant-broker reported the situation to the appellee-owners and advised them that he thought he could sell 10 or 15 acres but that the Board did not want the entire tract unless they could get 37 acres as originally represented through mistake.

When the broker mentioned selling part of the tract, one of the owners who was speaking for both of them testified, “I told him that was all off, I wouldn’t do it at all.” Whereupon the broker replied, “Well, he’d like to have sold it but he couldn’t do it unless he could split it, give them what they wanted and keep the rest.” The owner thereupon advised the broker that he was not interested in selling part of it at all and the broker in turn so' notified the School Board, and so far as the record reveals, had nothing further to do with the transaction.

The owner then stated that after “the matter of selling the property was entirely forgotten,” he was contacted by an appraiser for the School Board, who apparently was making an appraisal preliminary to condemnation proceedings. The Board requested a conference with the owner and two or more conferences resulted. The owner advised the Board that he did not want to sell a part of his property. Whereupon the Attorney for the School Board notified him that he had the condemnation papers all ready and all he had to do was file them.

. After some further negotiations in conversations with reference to condemnation, the defendants did sell 15 acres to the School Board for $45,000. The appellees repeated several times .that they did not wish to sell a part of the property and further stated that the only reason they did sell it was because of the threats of the exercise of the power of eminent domain.

Agreeing with the appellees that the broker did not, through his continuous efforts, produce the purchaser and the further contention that the sale resulted from the threats of eminent domain rather than from the efforts of the broker, the trial Judge, on a motion for summary judgment, found for the appellees and against the broker. We hold that the trial Judge ruled correctly.

Appellant relies principally on Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876, to support his position that if a counter-proposal is offered by a prospective purchaser produced by the broker and the owner accepts the counter-proposal, he is thereupon bound to pay a commission to the broker provided the broker has brought the parties together and the ultimate sale results from continuous negotiations conducted by the broker. This case is not applicable for the reason that in the case at bar the broker discontinued negotiations. He never offered or received a fixed counter-proposal for sale of part of the tract. There was a lapse of thirty to sixty days between the time that the owner rejected the suggestion that the broker might sell a part of the land and the time that the School Board on its own initiative set in motion proceedings to condemn the property. The record sustains the conclusion that the broker discontinued rather than continued the negotiations and that he notified the School Board accordingly.

Appellant further relies on the proposition that the appellees cannot claim duress as the coercive influence that forced them ultimately to sell. He grounds this position on Fuller v. Roberts, 35 Fla. 110, 17 So. 359. It is true that in considering duress from the standpoint of setting aside a transaction brought about by coercive pressure there can be no duress in law where the threatened act is nothing more than the party has a right to do under the law. We do not have here, however, a case involving an effort to set aside a transaction based upon duress. The case before us simply presents the question of whether the broker procured the salé or whether the sale resulted from some other factor independent of the broker’s efforts.

So far as this record reveals this sale resulted entirely from the pressure exerted by the' School Board through threats of eminent- domain with immediately present evidence of the intent of the Board to carry out the threat. It is our view that this case is substantially controlled by our decision in Shuler v. Allen, Fla.1955, 76 So.2d 879, 882, where we commented upon Taylor v. Dorsey, supra, and held as follows:

“The broker in this case is not protected by the rule set forth in Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876, to the effect that if the broker has brought the parties together and the sale-is effected as a result of continuous negotiations inaugurated by him, he will be nevertheless entitled to his comrriission even though the -sale eventually consummated is on terms and at a price different from those in the original listing or under the original employment. Continuous negotiations, as used in this decision, and as referred to in many others, means continuous negotiations between the seller and the prospective purchaser conducted by the broker. It is a rule that is fair to both. The requirement of continuous negotiations is not complied with when the broker conducts his negotiations with the purchaser ' alone unless the seller participates in such negotiations or at least has knowledge of the fact that such negotiations are going on. To establish any other rule would result in manifest injustice and subject the owner of real estate to continuous and unwarranted liability and result in oppression. When the broker concluded the presentation, of his testimony, he made no contention that he had placed the sellers on, notice that he was continuing negotiations with the prospective purchasers or that the sellers had any knowledge whatever concerning such fact." (Emphasis added).

In the same opinion, Shuler v. Allen, supra we quoted from the case of Cobb v. Saucier, La.App.1947, 30 So.2d 784, as follows :

“ '* * * “On the other hand, this court has with equal consistency always held that, where a broker has failed to effect a sale, and negotiations have ceased or been broken off, the owner may take up the negotiations where they were left off and himself complete the sale, and the mere fact that the ■sale may in some degree have been aided by the previous efforts of the broker does not of itself entitle the latter to -a commission; i. e., unless it clearly áp-pear that those efforts were in fact the procuring cause of the sale.” ’ ”

The record before us sustains the conclusion of the trial Judge that the relationship between the broker' and the owners terminated when thé owners rejected the suggestion that the broker undertake to negotiate for a sale of a- part of the tract and that the ultimate sale was brought about, not through the procuring efforts of the broker but rather through the persuasive influence of threats of eminent domain. It can hardly be concluded that the broker had anything at all to do with the owner’s ultimate decision to sell.

Finding no error, the judgment of the lower Court is, therefore, affirmed.

DREW, C. J., and, TERRELL, HOB-SON and O’CONNELL, JJ., concur.

THOMAS, J., dissents.

ROBERTS, J., not participating.

THOMAS, Justice

(dissenting).

The circuit judge found that no genuine issue of fact was presented by the complaint, answer and depositions so he disposed of the litigation by entry of a summary judgment in favor of the defendants, who are now appellees. Inasmuch as the parties stipulated that the matter be determined by summary judgment, I go direct to the relevant facts to get a foundation for a decision.

The appellant, a real estate broker, ■claimed that he obtained from the appel-lees a ‘listing’ of certain property they owned and that he was to receive a commission for producing a purchaser ready, willing and able to buy the land on the terms prescribed. He alleged that he secured a purchaser who, after continuous negotiations, bought a part of the tract and that he was, therefore, entitled to a commission ■on the part sold. The appellees declined ■to pay and this suit followed.

The appellees admitted that they placed the property with the appellant for sale, but they denied that 'as a result of continuous negotiations, á sale of a portion of the land was made to the buyer produced by the appellant. According to the answer, the whole tract consisted of twenty-seven acres planted in citrus trees which the appellees were offering for $75,000. The appellant heard that the Board of Public Instruction needed land in the vicinity as a site for a school and he undertook to sell the land to the board representing that its area was thirty-seven acres. The board objected to the price and when the appellant reported the objection to appellees they agreed to sell for $71,500 net. The board expressed a willingness to purchase at the lower price but when the appellant and the board discovered the disparity in acreage, the board declined to buy. The appellant reported the situation to appellees and told them he thought he could sell fifteen acres to the board but the appellees refused to put a price on a portion of the property and advised appellant he would have to sell all the land or he could sell none. Since the appellant “said * * * he could not sell it all,” to quote the appellees’ answer, the appellant • was told he “should just forget the entire matter * * * and it was definitely understood * * * that the matter of the [appellant] selling a portion of said property was out of the question and would not be considered- by the [appellees] under any circumstances.”

To continue with an analysis of the answer, after “the matter of selling the property was entirely forgotten” by the appel-lees, the board sent an appraiser to value the property apparently as a preliminary to an action in eminent domain, and the board requested a conference during which- the appellees were- told that the board would condemn fifteen acres of the property unless the appellees agreed to sell that much at a price acceptable to the board. 1 The attorney for the board “threatened” such procedure unless the parties could reach a compromise and it was “under pressure of the threat of eminent domain proceedings, reluctantly, unwillingly and involuntarily” that the appellees finally sold fifteen acres for $45,000.

The appellees concluded by repeating the statement that the sale did not result from' appellant’s efforts but was an “unwilling” act on their part due to the “pressure applied” by the school board and the board’s attorney through “threats of invoking its powers of eminent domain.”

I think this synopsis of the pleadings gives a fair picture of the transaction and I will not amplify it with a summarization of the contents of the depositions, but'will refer to certain parts of the deposition of one of appellees which I consider significant.

In answering the first question it is necessary to decide whether or not the appellant was entitled to a commission when he was engaged to secure a buyer for the whole tract and only part of it was sold. The appellees stand on the general rule that when a person is promised a commission for the sale of an entire tract of land and finds a purchaser for only part of it, he is not entitled to compensation on the part sold. But I do not feel that such is the law which governs this particular case. I think, rather, that the rule announced in Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876, is appropriate. We said there that when a counteroffer is made by the prospective purchaser the owner' is privileged to reject it, but if he accepts he must pay the broker. We also declared that when the broker has brought the parties together and a sale eventuates as a result of continuous negotiations, the broker will not be denied recovery because of a variance between the original terms and those finally accepted by the owner. I can see no distinction between the variation there, of price, and the variation here, of acreage.

I have italicized the word “continuous” because of the appellees’ position that they would sell all the property or none and that they “entirely” forgot the whole matter, as they told appellant he should do, when it developed that the board would take only fifteen acres. I am not able to give this construction to the testimony of the appellee — J. M. Hemphill. He first testified that when the appellant asked him if he would consider selling ten or fifteen acres, he said he would not. But he later stated that appellant had told him he was trying to sell the board part of the land and in answer to the question: “And then you continued to — the listing on all of it and it was in effect when you sold part of it to the School Board.” he answered “Yes.”

It is not disputed that that is exactly what the appellees did and I have the definite view that the negotiations continued between the appellees and the very purchaser appellant produced.

I find the excuse of coercion by the board to be totally without merit. Long ago this court decided in Fuller v. Roberts, 35 Fla. 110, 17 So. 359, 362, that “there can be no duress of goods in law where the act done or threatened is nothing more than what the party had a legal right to do.” The so-called threat that the board would take appellees’ property if they would not agree upon a price was in truth no ‘threat’ at all. That word implies that something will be done to hurt, punish, menace or harm the one to whom it is addressed. The appel-lees could not be harmed or hurt or punished or menaced by the institution of the eminent domain proceedings, because their property could not be taken without “just compensation,” Section 12, Declaration of Rights, F.S.A. Constitution of Florida, and the Fifth Amendment of the Constitution of the United States. In my opinion these guarantees reduce to a nullity the argument that the final sale of part of the property was induced by a ‘threat’ which caused a renewal of negotiations after they had ceased, and the prospect of a sale had been relegated to limbo. The appellees were not forced to sell any part of the land to the board, and when they did sell to a buyer whom the appellant had interested, they became liable to the appellant for his commission.

I think the judgment should be reversed so I dissent.  