Henley v. Guarman Life Insurance Co. of America

196 So. 621, 143 Fla. 79

• Court: Supreme Court of Florida
• Decided: May 21, 1940
• Status: Published

Opinions

Thomas, J.

The Judge of the Circuit Court of Record entered a judgment in favor of the plaintiff in a suit against the defendant to recover the money held by the latter for rents collected under a contract with the former to serve as its agent. The issues were formed by the common counts and pleas of “never was indebted as alleged” and set-off and counterclaim. It is the latter which presented the real dispute which we are asked to decide.

Two trials were conducted in the court of original jurisdiction and as many appeals prosecuted to the circuit court. It was to review a judgment of the appellate court affirming one of the trial court providing for recovery of the full amount claimed by the plaintiff, notwithstanding the pleas of set-off and counterclaim, that certiorari was sought of this Court.

The claim, of the defendant agent against the plaintiff principal, presented in the affirmative pleas, consisted of three items. One of them related to a charge for adjusting a claim against an insurance company for damage to the principal’s property caused by a hurricane; the second was a demand for payment for services rendered in supervision of the repair of the buildings damaged by the storm; and the third was a claim for commissions on rent to be paid in the future on leases executed during the existence of the agency.

We advert now to the negotiations which culminated in the relationship between the parties. The principal owned several business buildings which had been supervised by its representative, George W. Moore, a licensed real estate broker and petitioner’s employer. This agent died and an officer of the respondent agreed with the petitioner that she should manage the property for the same compensation paid her predecessor, 7 per centum of gross receipts in rents. A letter was thereupon delivered to petitioner instructing her until further notice to “service our various properties in your city, making the usual rent collections, depositing same to your account and paying the operating expenses.” She was instructed to mail monthly reports and checks for amounts collected by her less expenditures. No mention was made of any remuneration for adjustment of insurance claims or for making (to quote from petitioner’s brief) “major repairs of hurricane damages as distinct from ordinary repairs to maintain the buildings and ordinary alterations to meet requirements of tenants.”

The contract was terminated by the corporation in February, 1937.

It is significant that the money to cover the storm damage was collected and remitted by petitioner in 1935 and the repair of the property was commenced in the same year, yet no effort was made by her to obtain a commission or compensation for her services in that behalf until her employment was terminated in 1937. This circumstance together with her undertaking to make monthly remittances under a con tract terminable at any time and the paucity of proof that any understanding was reached for additional compensation lead us to the view that her claim for these items had no foundation.

She was employed to service her principal’s buildings, that is, “to perform services of maintenance, supply, repair, installation, distribution, etc.,” upon the property. Webster’s New International Dictionary (1939). Her pay therefor was fixed by the amount of rental she collected regardless of the ease or difficulty she experienced in the process and being upon the gross receipts of her income was not affested by the costs of repairs or operating expenses from month to month, whether they were much or little. It was to her advantage to keep the property in good condition so that rents would be forthcoming.

Nothing was specified in the arrangement about extra compensation for any additional work in the event of visitation of a storm of the proportions of a hurricane and we think none was implied. This service was included in the agreement and, to repeat, her delay in making the claim indicates that she may have entertained the same thought until the relationship was severed, tier effort in receiving money which the insurance company paid and in forwarding it to her principal falls in the same category.

In view of the testimony we find no basis for her position that she should be paid a certain percentage of the uncollected and unearned rentals under leases negotiated during her employment. It is obvious that each month she was to remit the collections she had made after deducting expenses of operation and her commission of 7 per cent of the gross amount she received. We cannot follow any logical course and arrive at the decision that under the facts we have outlined she would be entitled to recovery of a com mission of 5 per cent on rents to be earned after her contract was ended. To take this view would mean that she was during her employment or agency receiving 7 per cent while her predecessor had been paid 5 per cent for the same services, for her contract was the same as his, and that any compensation to a successor would be in addition to 5 per cent already paid her. The evidence does not justify such an interpretation.

The circuit judge was manifestly correct.

Affirmed, and petition dismissed.

Terrell, C. J., Whitfield, P. J., and Chapman, J., concur. Brown, J., not participating. Buford, J., dissents.