Perrin v. Sam Kaye, Inc.

District Court of Appeal of Florida

Perrin v. Sam Kaye, Inc.

345 So. 2d 765, 1977 Fla. App. LEXIS 15403

CourtDistrict Court of Appeal of Florida

DecidedApril 7, 1977

DocketNo. 76-1208

StatusPublished

Cited by1 cases

This text of 345 So. 2d 765 (Perrin v. Sam Kaye, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Perrin v. Sam Kaye, Inc., 345 So. 2d 765, 1977 Fla. App. LEXIS 15403 (Fla. Ct. App. 1977).

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DAUKSCH, Judge.

This is an appeal from a summary judgment entered against the Appellants in a [766]*766suit brought by the Appellee to recover a real estate commission.

The Perrins, as sellers, and Sam Kaye, Inc., as real estate broker, entered into an exclusive listing agreement. In return for the Appellee’s promise to use its best efforts to find a buyer the Appellants agreed to list their home exclusively with the Ap-pellee for three months and thereafter until revoked by ten days’ written notice.

It is alleged Appellants executed an exclusive right of sale with another broker prior to the effective revocation of the exclusive listing agreement with the Appellee. The property was sold thru the second broker and the Appellee sued for its commission.

In their answer, the Appellants denied the statement in the complaint that the Appellee used its best efforts to find a buyer and otherwise performed all the conditions of the exclusive listing agreement. Appellee moved for summary judgment without offering any affidavits in support of its allegation of full performance. The trial court granted the motion and judgment was entered against the Appellants. Since factual question of failure of consideration remains the trial court was precluded from the entry of the summary judgment and erred in doing so. A.B.G. Investment, Inc. v. Selden, Jr., 336 So.2d 444 (Fla. 4th DCA 1976); Cook v. Martin, 330 So.2d 498 (Fla. 4th DCA 1976).

REVERSED and REMANDED.

ALDERMAN, J., concurs. LETTS, J., concurs specially, with opinion.

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DAUKSCH, Judge.

This is an appeal from a summary judgment entered against the Appellants in a [766]*766suit brought by the Appellee to recover a real estate commission.

The Perrins, as sellers, and Sam Kaye, Inc., as real estate broker, entered into an exclusive listing agreement. In return for the Appellee’s promise to use its best efforts to find a buyer the Appellants agreed to list their home exclusively with the Ap-pellee for three months and thereafter until revoked by ten days’ written notice.

It is alleged Appellants executed an exclusive right of sale with another broker prior to the effective revocation of the exclusive listing agreement with the Appellee. The property was sold thru the second broker and the Appellee sued for its commission.

In their answer, the Appellants denied the statement in the complaint that the Appellee used its best efforts to find a buyer and otherwise performed all the conditions of the exclusive listing agreement. Appellee moved for summary judgment without offering any affidavits in support of its allegation of full performance. The trial court granted the motion and judgment was entered against the Appellants. Since factual question of failure of consideration remains the trial court was precluded from the entry of the summary judgment and erred in doing so. A.B.G. Investment, Inc. v. Selden, Jr., 336 So.2d 444 (Fla. 4th DCA 1976); Cook v. Martin, 330 So.2d 498 (Fla. 4th DCA 1976).

REVERSED and REMANDED.

ALDERMAN, J., concurs. LETTS, J., concurs specially, with opinion.

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345 So. 2d 765, 1977 Fla. App. LEXIS 15403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perrin-v-sam-kaye-inc-fladistctapp-1977.

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