¶1 concurring:
¶2 I concur in Judge BARNS’ opinion.
¶3 As I understand the bill filed by the plaintiffs below, respondents here, there was no agreement that the real estate commission should be paid out of the proceeds of the sale. The bill alleges that plaintiffs’ contract of employment to sell the property for a certain commission was with the owner, Robertson. It is not alleged that Phillips, the purchaser, ever agreed to pay plaintiffs a commission. The full purchase price was paid in cash by Phillips to Robertson, and a deed delivered by Robertson to Phillips. It appears that Robertson is liable for the commission, $10,000.00, not Phillips. As I view it, the case of Moss v. Spurry, 140 Fla. 301, 191 So. 531, 125 A.L.R. 909, is not in point on the facts alleged in the bill. Whether Phillips is liable in damages to plaintiffs for fraudulently conspiring with Robertson, a non resident, to defeat plaintiffs below from collection of their commission, is not, as we see it, a question that we are called upon to answer in this case.