F. L. Batchelder v. George Prestman

DAVIS, Commissioner: -- The plaintiff, who is defendant in error here, declared upon the common count for work done and materials furnished, the three money counts, and also upon a special count for a commission for ""finding a purchaser"" for a ninety-nine year lease upon certain property therein described, by virtue of an employment of plaintiff ""together with Florida Investment Service, Inc., and Harry G. Kingsland."" The defendant (plaintiff in error here) pleaded the general issue to the common counts and in pleading to the special count, he denied that he employed the plaintiff to find a purchaser for the property described in the declaration. He further alleged in substance, that he did not own a ninety-nine year lease upon such property; that he employed the plaintiff and some associates to find someone, ready, able and willing to take from defendant, a ninety-nine year lease upon the property, to which he, the defendant, had a fee simple title; that a lease was made and delivered to the party procured by the plaintiff, who was a stranger to defendant; and an initial payment of $10,000.00 on the first year's rent of $27,000.00, was made to defendant, and as a part of the transaction, and on the same day, plaintiff and his associates signed and delivered to defendant, a writing containing the following clause: ""It is also understood, that this commission is to be paid in proportion as you receive your first year's rent""; that plaintiff's total commission on the transaction was $1,600.00; that he had been overpaid his commission on the $10,000.00 by $25.52, and that the balance of $17,000.00 on the said first year's rent had not been paid, the said lessee having disappeared from Florida soon after making the initial payment of $10,000.00. This plea was stricken by order of court upon motion of plaintiff, and the defendant was allowed to file ""new pleas to the special count"". Thereupon, the defendant filed what he termed an ""additional or amended"" plea to the said special count, wherein he alleged in substance that he had