Prencsil v. Golaska , 86 Ohio App. 465 ( 1949 )

This is an appeal on questions of law from a judgment of the Common Pleas Court of Cuyahoga County in an action wherein the appellant, James Prencsil, was plaintiff and the appellees, James Golaska, and others, were defendants.

The action is one instituted to recover a commission under a written contract entered into between Prencsil and Golaska, whereby Golaska employed Prencsil as a real estate broker for a stipulated commission to procure a purchaser for and sell certain real estate owned by Golaska, upon the terms set forth in the contract. The sale of the real estate was not effected and the claim for commission is based on the alleged refusal of Golaska to sell the real estate upon the terms prescribed in the contract to a purchaser procured by Prencsil.

On the trial in the Common Pleas Court, the court granted defendants' motion to arrest the taking of testimony and to enter judgment in favor of the defendants, which was done. That is the judgment from which this appeal was taken.

In order that a real estate broker may recover a commission from his principal for the sale of real estate, where the sale is not consummated, it is necessary that the broker procure not only a purchaser able, ready and willing to complete the purchase, but also the execution by the proposed purchaser of an enforcible contract for the purchase of such realty; or that he bring the vendor and proposed purchaser together so that the vendor may procure such a contract. Patton v. Alessi, 42 Ohio App. 91,180 N.E. 387; Hrovat v. Krall, 28 Ohio App. 46, 162 N.E. 437;Harris v. Manhattan Real Estate Co., 1 Ohio Law Abs., 616;Mattingly v. Pennie, Admr., 105 Cal. 514, 39 P. 200.

To be enforcible, such a contract is required by the statute of frauds to be in writing.

In the instant case, it conclusively appears that the plaintiff did not procure the execution of an enforcible contract on the part of the proposed purchaser, the agreement of the purchaser not being in writing; and the plaintiff did not bring the vendor and the proposed purchaser together so that the vendor might have procured such a contract. Consequently the plaintiff is not entitled to recover any commission under the contract entered into between him and the defendant Golaska.

The judgment of the Common Pleas Court is therefore affirmed.

Judgment affirmed.

MIDDLETON and DOYLE, JJ., concur.

GUERNSEY, P.J., and MIDDLETON, J., of the Third Appellate District, and DOYLE, J., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.