Hornback v. S.R. Paper Co. , 27 Ohio App. 329 ( 1927 )

Plaintiffs, F.G. Hornback and Ed. Hirsch, partners in the real estate brokerage business, brought suit in the court of common pleas on October 3, 1925, against the Sabin Robbins Paper Company, a corporation, praying judgment for $2,500, and interest from September 24, 1925, on an alleged contract to find a purchaser for certain real estate.

The amended petition avers that, "on or about the 4th day of December, 1924, the defendant employed plaintiffs to find a purchaser for certain real estate, namely, the plant and place of business of the defendant and the land whereupon the same was situated, in Middletown, Butler county, Ohio, * * * at the price of $50,000, or any other price or terms to which the defendant should agree," and that defendant "agreed to pay plaintiffs the usual and customary commission upon such real estate sales for such services," namely "5 per cent. of the sale price."

The remaining averments of the amended petition are as follows:

"Plaintiffs accepted said employment, and on the 10th day of December, 1924, found a purchaser for said property, exhibited said property to said purchaser, with the knowledge and consent of the defendant, and notified defendant of said facts. And the defendant thereupon accepted said services of the plaintiffs and entered into negotiations with said purchaser. And thereafter defendant and plaintiffs continued to negotiate with said purchaser, each with the knowledge and consent of the other until on or about the 24th day of September, 1925, at which time the defendant sold said property to the purchaser so procured by the plaintiffs for the sum of $50,000, and entered into a contract with said purchaser for such sale. At all said times, and during all said negotiations, it was understood and agreed between plaintiffs and defendant that plaintiffs were to be paid said usual and customary commission for their services.

"Said purchaser was ready, able, and willing to carry out the terms of said sale, and to pay said sum of $50,000 for said property, and has done so.

"Plaintiffs have done and performed each and every thing and condition by said agreement with defendant required of them, but defendant refuses to pay such commission or any part thereof. And the services so performed by plaintiffs were worth said commission."

Defendant answered admitting its corporate existence and its ownership of the real estate in question, and that plaintiffs were partners engaged in the real estate brokerage business in Middletown; but denying all the other allegations of the petition.

At the trial, on January 13, 1927, before any other material evidence had been heard, the testimony of one of the plaintiffs developed the fact that the contract sued on was wholly verbal. Thereupon the court, at the request of the defendant, directed the jury to return a verdict for the defendant. Plaintiffs ask that the judgment below be reversed, and that a new trial be granted.

Since the enactment (111 Ohio Laws, p. 104), effective July 9, 1925, of the amendment to Section 8621 of the Ohio General Code that brings within the statute of frauds "an agreement, promise or contract to pay any commission for or upon the sale of an interest in real estate," our Supreme Court, in the case ofBrenner v. Spiegle, 116 Ohio St. 631, 157 N.E. 491, has held a petition to be demurrable which set forth facts essentially similar to those set forth in the case now before us. In that case the petition averred that in June, 1925, the plaintiff, a real estate broker, was orally employed to "find and procure a tenant and lessee," and that the plaintiff "found a tenant able, ready, and willing to make the lease, and notified the defendants of that fact, and that the lease in question was executed on or about the 30th day of July, 1926."

Plaintiffs here contend that their amended petition does not come within the ruling of Brenner v. Spiegle, because they have set out facts showing that plaintiffs accepted the offer of defendant prior to the effective date of the statute in question, since they have averred that plaintiffs, "on the 10th day of December, 1924, found a purchaser for said property, exhibited said property to said purchaser, with the knowledge and consent of the defendant, and notified defendant of said facts." However, that averment in the amended petition, as the accompanying allegations show, clearly means that on December 10, 1924, the plaintiffs merely "found a person who later became a purchaser."

The case of J.A. Wigmore Co. v. Chapman, 113 Ohio St. 682,150 N.E. 752, is our authority for holding that "to find a purchaser" means "to find a person ready, willing, and able at the time to take the property at the price and upon the terms stipulated." The amended petition clearly shows that plaintiffs did not comply with these requirements until some date after December 10, 1924; and the amended petition fails to say whether that date was earlier or later than July 9, 1925.

On the authority of the two Supreme Court cases already cited, we hold that the amended petition did not state a cause of action on express contract.

Plaintiffs contend, however, that, if the amended petition is not good as an action on the express contract, it nevertheless states a good cause of action for recovery quantum meruit. With this contention we do not agree. Without deciding at this time that a person engaged in the real estate brokerage business could never escape the provisions of the amendment by suing for a quantum meruit under an implied contract, we hold that the added averment in the amended petition, to the effect that "the services so performed by plaintiffs were worth said commission," does not convert this action into one for quantum meruit on an implied contract.

The judgment of the court of common pleas will be affirmed.

Judgment affirmed.

HAMILTON, P.J., and CUSHING, J., concur.