Gerald B. FALOVITCH and DAVEDA M. Falovitch, his wife, Appellants,
ADRIENNE REALTY, INC., Sol Davidow and Alice Davidow, Appellees.
Michael H. Weisser, Miami, and Kenneth B. Swinger, Fort Lauderdale, for appellants.
Porter, Treister & Bercuson and Michael D. Wohl and Gary M. Carman, Miami, for appellees.
Before PEARSON, HAVERFIELD and HUBBART, JJ.
Gerald B. Falovitch and Daveda M. Falovitch, his wife, appeal a final judgment in favor of Adrienne Realty, Inc., for a real estate broker's commission. The judgment also found for the real estate company against the Falovitches upon the Falovitches' claim for a return of one-half of the deposit made by prospective purchasers. The principal question presented by the appeal is whether the real estate broker performed its duty as a broker in order to be entitled to a commission.
The suit was begun by Sol Davidow and Alice Davidow, his wife, who were the prospective purchasers of the property in order to recover their deposit. Both the owners Falovitch and the broker, Adrienne Realty, were made parties to the suit. The real estate broker cross-claimed against the Falovitches for the commission claimed to be due for having presented a purchaser ready, willing and able to purchase. The Falovitches cross-claimed against the real estate broker claiming the right to recover one-half of the deposit for the sale that was not completed. The Davidows were not parties to this appeal. The trial judge set out his findings of fact as follows:
'1. That GERALD B. FALOVITCH and DAVEDA M. FALOVITCH, his wife, entered into a Multiple Listing Agreement with Marbin & Wolis Realty Company, Inc. for the sale of real estate which is the subject matter of the above styled action.
'2. That ADRIENNE REALTY, INC. procured a purchaser ready, willing and able to buy the subject real estate, to wit: SOL DAVIDOW and ALICE DAVIDOW, his wife.
'3. That SOL DAVIDOW and ALICE DAVIDOW, his wife, made an offer on the subject property in the form of a Deposit Receipt Contract, a copy of which was attached to the Complaint filed herein, and said contract was accepted by GERALD B. FALOVITCH and DAVEDA M. FALOVITCH, his wife.
'4. GERALD B. FALOVITCH and DAVEDA M. FALOVITCH could not perform pursuant to the Deposit Receipt Contract entered into between the parties thereto, consequently, the sale was not closed due to the default and failure on the part of the seller.
'5. That at all times material hereto, ADRIENNE REALTY, INC. acted in good faith and performed all aspects of its contract, to wit: the Multiple Listing Agreement for the subject property, a copy of which was filed in this action by Defendant, ADRIENNE REALTY, INC.
'6. That pursuant to the aforementioned Deposit Receipt Contract, ADRIENNE REALTY, INC. was entitled to one-half of the stated brokerage commission or three and one-quarter (3 1/4%), percent of One hundred twenty-five thousand and NO/100 ($125,000) Dollars purchase price of the subject real estate or $4,687.50.
'7. That ADRIENNE REALTY, INC. was forced to take action against GERALD B. FALOVITCH and DAVEDA M. FALOVITCH, his wife, to recover its earned brokerage commission and, pursuant to the Deposit Receipt Contract are entitled to recover reasonable attorney's fees and Court costs from the sellers.'
The Falovitches had a mortgage on their property which provided that it could be transferred to a new owner only in the event the new owner assumed the new mortgage. In event the property was sold without an assumption agreement, the mortgage provided that the entire balance would become immediately due and payable. The Falovitches, wishing to sell their property, entered into a multiple listing agreement with another real estate broker.
This listing agreement, which was prepared by the real estate broker, provided only that the property would be sold for all cash above the mortgage. Acting pursuant to the multiple listing agreement, Adrienne Realty, Inc., procured a purchaser who was willing to purchase but would not assume the mortgage. A deposit receipt contract was prepared by Adrienne Realty which provided that the property would be sold subject to the outstanding mortgage. The Falovitches, who were then residing in Canada, were informed by telephone that a purchaser had been procured who would purchase in accordance with the multiple listing agreement. The deposit receipt contract was forwarded to Canada and signed by the Falovitches. The prospective purchasers, upon discovering that they could not purchase the property without assuming the mortgage, declined to close the deal and demanded the return of their deposit. The testimony taken before the court without a jury disclosed that at the time of the taking of the multiple listing, the agent who procured the listing understood that the mortgage was to be assumed. The evidence also reveals that at the time the deposit receipt contract was submitted to the Falovitches, there was no explanation to them that the mortgage would not be assumed. It seems clear from the evidence that the Falovitches were ...