
    Paul B. STEINBERG, Appellant, v. Elesa VON BRECHT, Appellee.
    No. 74-839.
    District Court of Appeal of Florida, Third District.
    May 6, 1975.
    
      Charles L. Neustein, Miami Beach, for appellant.
    Charles H. Spooner, Coral Gables, for appellee.
    Before BARKDULL, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   BARKDULL, Chief Judge.

The appellant, plaintiff in the trial court, seeks review of a summary judgment entered in an action for specific performance.

The plaintiff alleges that the defendant gave him the right of first refusal on certain real property, in exchange for legal advice for which he did not charge the defendant. The right to first refusal was not in writing. Thereafter, the defendant found a buyer and a contract was drawn up, which the defendant approved and signed; acceptance thereof was not communicated to the buyer. Then a contract was sent to the plaintiff and he was offered the property at the same price and terms and conditions. The plaintiff signed it and gave the broker a $5,000.00 deposit. The broker received the deposit and signed the contract. The defendant then refused to sell, alleging the buyer had increased his offer, and the plaintiff sued for specific performance. The court granted the summary judgment in favor of the defendant.

We find that the trial court erred in entering a summary judgment for the defendant. There was no question but that the seller received a bona fide offer for $50,000.00 by written deposit receipt; she signed this receipt and returned it to her broker. Because of the defendant’s prior conversations with the appellant, the broker did not deliver the completed agreement to the third person but was instructed by the defendant and he did deliver to the appellant a further contract containing the identical terms of those last submitted by the third person. Thereafter, the appellant accepted the identical terms, signed the deposit receipt, tendered another $5,000.00 check, and delivered it to the broker. His deposition disclosed that the seller had told him to conduct his negotiations through the broker, which he did.

On the state of the record, it is obvious that [notwithstanding any question of validity of the oral right of first refusal, which we do not determine] pursuant to the appellee’s direction the appellant was offered a contract, which he executed and which he contends is a fully executed contract in writing for the purchase of realty. This contention is based on the allegation that the appellee had designated the broker as her agent for purposes of executing said contract. This allegation has not been refuted by the appellee, other than by way of a motion to dismiss executed by her counsel. These assertions clearly raise an issue of material fact as to such an agency relationship. To determine that no agency relationship existed would have required the trial court to make a determination of fact, which ought not be made in a summary judgment proceeding. American Ladder & Scaffold Co. v. Miami Vent. Awn. Mfg. Co., Fla.App.1964, 161 So.2d 699; Herold v. Computer Components International, Inc., Fla.App.1971, 252 So.2d 576. See also: Dean v. Gold Coast Theaters, Inc., Fla.App.1963, 156 So.2d 546; Holl v. Talcott, Fla.1966, 191 So.2d 40; Visingardi v. Tirone, Fla.1966, 193 So.2d 601.

It was error for the trial judge to enter a summary judgment for the defendant and, therefore, the matter is returned for further proceedings not inconsistent with this opinion.

Reversed and remanded, with directions.

CHARLES CARROLL, Associate Judge,

(concurring specially).

I concur in this court’s judgment and opinion. The ruling of the trial court on the hearing on defendant’s motion for summary judgment, that the defendant was entitled to judgment as a matter of law, was incorrect where the record revealed the written contract which the plaintiff signed for purchase of the property also was signed by the broker at the place provided for a seller’s signature.

The copy of the contract signed by the broker, which was delivered to him, was attached to the complaint. The purchaser was aware of the ownership of the property, having previously entered into a contract with the owner for the right of first refusal. The broker, who was the agent of the seller, was known to the purchaser as such.

After the seller had received a signed offer for purchase of the property from a third party on stated terms acceptable to the seller, the basis or terms upon which the plaintiff as the holder of the right of first refusal was entitled to purchase the property were fixed and determined. The broker was dispatched by the seller to “negotiate” the sale to the plaintiff, necessarily on that basis. A contract for purchase on those terms, submitted by the broker, was signed by the plaintiff and the broker. In addition to implication thereby of express authority to the broker to make the contract for the seller, the signing of the contract by the broker could be held to be sufficient to bind the seller on the theory of apparent authority for the professed agent to so act. Thompkin Corporation v. Miller, 156 Fla. 388, 24 So.2d 48.

The fact that the broker (who signed the contract in the place of the owner) did not add or insert after his signature the words “as agent” or “agent” is not material. In signing the contract at the place for signature of the seller named therein, it must be considered either that the broker did so intending to bind himself for sale of the property as the owner thereof, or that he signed the contract on behalf of the owner. In the circumstances, to assume the former would not be logical, while the latter assumption would appear logical and reasonable, if not compelling. At the least, if a question remained as to the broker’s capacity in that connection it would be one for determination at trial, as a material issue having important bearing on the merits of the plaintiff’s claim for specific performance of the contract.

PEARSON, J., dissents.  