59 Fla. 271 | Fla. | 1910
The defendant in error on the 25th day of April, 1903, sued the plaintiffs in error in the Circuit Court of Orange County in an action of assumpsit on special contract. The declaration alleged in substance that the defendants were real estate brokers and contracted with him to pay him one half of all commissions that they might get from sales of land made by them to any person or persons whom the plaintiff might introduce to them, and for his aid and assistance in making any such sale; that in compliance with this agreement the plaintiff did introduce to the defendants a party who became a purchaser from them of 67,000 acres of land lying in the counties of Orange and Osceola, and that said sale was consummated through the joint exertions of the plaintiff and the defendants in the month of April, 1903; that the owner or vendor of said land allowed said defendants whose brokers and agents they were the sum of $3,000.00 as commission for such sale, and that said owner or vendor paid said sum to one I. W. C. Parker as the agent of the defendant, and that by reason of the said agreement between plaintiff and defendants the plaintiff’s interest in the said commission is $1,500, and that the defendants owe the sum to the plaintiff, but refuse to pay the same. The trial of the case resulted in a verdict and judgment in favor of the plaintiff below and the defendants below bring such judgment here for review by writ of error.
To this plea the plaintiff below demurred, and this demurrer was sustained by the court.below and this ruling is assigned as error. The court below erred in this ruling. The plea sets up explicitly that at the date of the institution of this suit no commissions for the sale of said land were either due to the defendants nor had any commissions been then paid to them, and that conse
In ordinary actions commenced by summons the plaintiff, in order to succeed, must show that his right of action was complete at the time the action was commenced. 1 Cyc. 744, 745; Titus v. Gunn, 69 N. J. L. 410, 55 Atl. Rep. 735. In order to entitle a broker to recover from another broker on an agreement of the latter to divide with him the commission on the sale of certain property, the commission must have been actually received by the broker whom it is sought to charge with liability. 23 Am. & Eng. Ency. Law, p. 930.
As this disposes of the entire case it becomes unnecessary to consider the thirty-eight other assignments of error made in the case. The judgment of the court below in said cause is hereby reversed at the cost of the defendant in error.
Petition for rehearing in this case denied.