C. M. Livingston v. Joseph Malever

BROWN, J. -- This is the second appearance of this case before this court. See Malever v. Livingston, 95 Fla. 272, 116 so. 15. We there held that inasmuch as the declaration alleged that the plaintiff was employed by the defendant to sell certain property, the declaration should have alleged sufficient ultimate facts to show that there was a consummated sale, or procurement by the plaintiff from the purchaser of a binding written contract of purchase upon the terms authorized by the principal which the principal could enforce if necessary, and that for these reasons the demurrer to the original declaration should have been sustained. In the opinion, the distinction between a contract to sell real estate, and a contract to find a purchaser, which had been previously well settled by the decisions of this court therein cited, was pointed out. It was there held that where a broker was employed, not merely to find a purchaser, but to sell real estate, that in order to effect a sale within the meaning of such a contract, something more than a mere verbal agreement coupled with payment of earnest money was necessary; that it meant in the absence of contractual stipulation to the contrary, the consummation of a sale, that is, that the purchase money should be paid or secured pursuant to the broker's authority, and title transferred to the purchaser, thus completing the transaction; or if this were not done, that the broker must secure the execution and delivery by the purchaser of a binding written contract of purchase, upon the terms authorized by the principal, which the principal could enforce, if necessary.