DEEN v. WEAVER, 47 So.2d 539 (Fla. 1950)

DEEN v. WEAVER ET AL.

Supreme Court of Florida, Division A.
July 28, 1950.

Appeal from the Circuit Court for Dade County, Stanley Milledge, J.

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Ward Ward, Miami, for appellant.

Choate Sinclair, Miami, for Howard R. Weaver.

Friedman, Shapiro Hofmayer, Miami, for J. Leroy Farmer.

TERRELL, Justice.

Appellant George Deen filed a petition in the Circuit Court in which it is alleged that he was employed by appellee, Howard R. Weaver, to find a purchaser for certain real estate, the commission for his services to be five per cent. Appellee J. Leroy Farmer agreed with Deen to purchase the property for $130,000 and entered into contract with Weaver to do so. It is also alleged that Farmer agreed with Deen to pay $1,500 of the commission, the commission by contract being $6,500. Deen, then agreed with Weaver to modify the commission agreement so that Weaver would pay $3,250 and Farmer $1,500, the result of which was to reduce the commission in the sum of $1,750. The petition prayed for declaratory decree defining Deen’s rights against Weaver and Farmer, the amount of their liability to him and whether they are liable on a pro rata basis, jointly or severally.

Weaver executed the deed to the property and placed it in escrow pending the 15 day closing period under the contract of sale. Farmer decided not to go through with the purchase contract and so notified Weaver. There was no attempt on the part of Weaver to force Farmer to comply with the sale agreement. They later got together and mutually agreed to rescind the contract. Deen then filed his petition for declaratory decree with prayer as recited in the preceding paragraph. Motions of Weaver and Farmer to dismiss were granted on the theory that the remedy by declaratory decree was not applicable. We are confronted with an appeal from the decree of dismissal.

In Ready v. Safeway Rock Co., 157 Fla. 27, 24 So.2d 808, we hung up a light to guide counsel in applying the Declaratory Judgments Statute, Chapter 87, F.S.A. True, it was not intended as an all inclusive guide, but in general terms it outlines the thinking of the Court about the purpose of the statute and the scope of its operation. After all is said, the question in this case is whether petitioner has a cause of action against Weaver or Farmer or both of them.

The rule is settled that the Declaratory Judgments Statute cannot be employed to point out the procedure for an attorney to follow to litigate a case like this. Bagwell v. Woodward Iron Company, 236 Ala. 668, 184 So. 692; Pennsylvania Casualty Co. v. Thornton, D.C., 61 F. Supp. 753, 1 C.J.S., Actions, § 18, p. 120 (1950 Cum. Pocket Part). Even if the method of procedure could be indicated, the merits of petitioner’s claim involve purely common law considerations that could not be reached in a declaratory judgments proceeding.

The allegations of the petition show that petitioner produced a purchaser ready, able and willing to buy, but whether his cause of action is against Weaver or Farmer or both of them or whether he can prove his allegations, are questions that must go to the proper forum for consideration and adjudication. Whether or not one has a cause of action must be determined by the case made in the pleadings. The Declaratory Judgments Statute does not presume to cover such questions. Whether Weaver or Farmer or both are liable may depend on proof or some other element that was not before the chancellor. We think he was correct in refusing a declaratory decree.

The judgment appealed from is therefore affirmed.

Affirmed.

ADAMS, C.J., and THOMAS and ROBERTS, JJ., concur.

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