Opinion
June 23, 1950. Rehearing Denied July 24, 1950.
Appeal from the Circuit Court for Dade County, Charles A. Carroll, J.
Cushman, Woodard Gotthardt, Miami, for appellant.
Turk Newman, Miami Beach, and Vivian L. Scheaffer, Miami Beach, for appellee.
The appellant, a real estate broker, brought this action against the appellee, a corporation, charging in her declaration simply that the corporation employed her to procure a purchaser of its apartment building at the price of $125,000, and agreed to pay her five per cent of that amount for her services; that she performed the contract by procuring a purchaser, Mrs. A.H. Marrettick, who was ready, willing, and able to buy and did buy the property.
Upon a sole plea that it did not promise as alleged the issue was formed, and the jury, after hearing all the testimony offered by both parties, found for the plaintiff.
After judgment had been entered, the judge ordered a new trial for two reasons, one of which was his view that he should not have admitted in evidence the deposition of the alleged purchaser taken under Federal Rules of Civil Procedure, rule 26(d) (2), 28 U.S.C.A., inasmuch as she was not "at the time of taking the deposition * * * an officer, director, or managing agent of * * * [the] corporation," appellee, as the rule requires. This alleged purchaser was shown by the certificate of the Secretary of State to have been a director of the corporation at the time of its voluntary dissolution, 8 July 1946. The appellant questions this ruling on account of the provision of our statutes, Section 612.47 et seq., Florida Statutes 1941, and F.S.A., that when a corporation is dissolved its directors become trustees for a term of three years in order to settle its affairs and prosecute and defend suits in its name. If taken literally, the rule would not be available to one suing a corporation during that period when the directors had fallen into the category of trustees for the specified purpose of defending suits and bringing them.
Our first thought was that we were not obliged to answer this question because of the state of the record. The appellee had objected on this ground to the introduction of the deposition; then, in apparently rapid succession, the plaintiff, appellant, rested her case and appellee moved for a directed verdict, which was denied, whereupon the appellee introduced as its first witness the deponent who gave testimony, in essential details, the same as that appearing in her deposition.
Technically, any error that might have occurred by admitting the deposition was probably cured by the subsequent testimony; however, it is plausible to argue that at the very moment the motion for a directed verdict was made, the testimony of the witness given personally had not been received by the jury and proof of an important element of plaintiff's case was lacking. So, despite our first impression, we shall pass directly on the question whether one suing a corporation in the process of dissolution can take advantage of the rule, although a director sought to be examined may have become a trustee under the statute. It seems that any but an affirmative answer would place undue emphasis on the letter of the rule without regard to its spirit. See Thompson v. Oil Refineries, Inc., D.C., 27 F. Supp. 123. When the purpose of the statute designating directors as trustees to conclude the business of a corporation within a specified period is considered, there seems as much, if not more, reason why the rule should be available in an action like the present one.
It is our view, stated concisely, that the rule does apply, not only to directors of going corporations, but equally to those directors of corporations being dissolved who have, for the purpose of dissolution, become trustees as well. Though trustees, they are nonetheless directors; they are trustees by virtue of being directors.
The remaining question is presented by the second part of the motion for new trial which the judge thought was well founded, namely, the variance between the allegations and the proof, the plaintiff having alleged, to repeat, that she was employed to secure a purchaser and having proved that instead of a direct transfer from the corporation which she represented to the purchaser, Mrs. Marrettick, there had simply been a sale of the corporate stock to her.
We shall now give a resume of the testimony describing the transaction, which the jury was privileged to believe.
The president of the corporation, one Bess Hokin, in March, 1945, appointed appellant, who was serving as manager of the apartment building, agent to procure a buyer for the sum alleged in the declaration and agreed to compensate her in the amount of five per cent of the purchase price. The appellant accepted the employment, advertised the property for sale in the newspapers, and listed it with the Miami Beach Board of Realtors. Early the following year she met Mrs. Marrettick, showed her the apartment building, and discussed with her the income, expenses, "and everything in detail pertaining to the Golden Arms Apartment." Mrs. Marrettick returned the following day accompanied by her husband, when she inspected the property, including the grounds and the boiler room.
After Mrs. Marrettick had made several visits to the building and had had many conversations with the appellant, she and Bess Hokin and her husband seem to have got together.
Soon afterward the Hokins telephoned appellant to "bring the leases" over to their hotel, and when she arrived Mrs. Marrettick was with the Hokins. Hokin then announced that he intended to sell Mrs. Marrettick the property and give her the benefit of the commission, thus defeating the appellant of the compensation for her services. During the discussion the appellant advised Hokin of her negotiations with Mrs. Marrettick.
Mrs. Marrettick took charge of the property 1 May 1946 after she, or she and her husband, had purchased the apartment building through the process of buying the stock in the corporation, acquiring all its assets and assuming all its obligations.
In our opinion that testimony substantiated the allegation that the appellant had procured a purchaser ready, willing, and able to buy the apartment building, and the fact that there was no direct deed from the corporation to Mrs. Marrettick is of small consequence. We are unable to see how the appellee could have been misled by testimony establishing such a transaction although the precise manner in which the transfer was eventually accomplished had not been alleged. From the certificate of the Secretary of State it is clear that the buyers later caused the corporation to be dissolved, and when all is said and done, the property did actually change hands through the efforts, so the jury was convinced, of the appellant.
It has been argued here that if the appellee or those persons acting for it were guilty of any fraud or unfair dealing, this conduct should have been alleged, but we fail to see any necessity for doing that. The appellant, according to the allegation of her declaration and the proof she offered, was employed to produce a purchaser. When she performed that service she was entitled to compensation, and the manner employed by the seller and the buyer in consummating the deal was not her concern. These steps were taken after she had carried out her part of the contract of employment.
It would be unjust to hold that a real estate broker employed by a corporation to procure a purchaser for the sole corporate assets could be defeated of his fee because the parties subsequently decided to effect the transfer by delivering all the stock instead of conveying those assets.
We decide that the appellant should have recovered, and we reverse the ruling granting the motion for new trial, with directions to enter a judgment in her favor.
Reversed.
ADAMS, C.J., and TERRELL and ROBERTS, JJ., concur.