Lowis v. Spitznaugle , 23 Ohio App. 279 ( 1926 )

The action was brought against Frank L. Lowis to recover commission as brokers for procuring a purchaser for certain real estate. The trial resulted in a verdict and judgment of $1,174.07, and this proceeding in error is brought to secure a reversal of that judgment.

The original contract is evidenced by a written instrument by the terms of which the brokers agreed to use their efforts to secure a purchaser for certain property located on Sylvania avenue in the city of Toledo for a price of $35,000, the commission, in the event of sale, to be 5 per cent. on the first $10,000 and 3 per cent. on the balance, the owner obligating himself to deliver to the purchaser a deed of general warranty with full covenants. This contract continued in full force, except that by certain telegrams between the parties the price was reduced to $30,000. The brokers found a purchaser at this latter price, who entered into a valid written contract and was ready, willing, and able to fulfill the same. After the execution of the contract of sale with the purchaser, it developed that there were material restrictions on the land against the erection of certain buildings, the existence of which was not known to the brokers nor to the purchaser, F.H. Stewart, but the contract of sale provided that the property was to be unrestricted as to building. During all the negotiations a large sign erected on the property by the owner recited that it was unrestricted. Lowis was either unable or unwilling to have the restrictions removed, and declined to carry out the contract.

The written terms of employment made no reference to any restrictions, and the agents would be entitled to assume, in the absence of knowledge to the contrary, that the owner was able to complete the contract of sale and make a good and sufficient deed to the purchaser. Jamison v. Harrison, Jr., 10 Ohio App. 454. Having accepted the employment as brokers and complied with all the terms imposed on them, plaintiffs were entitled to recover the stipulated commission, as the failure to execute the deed in compliance with the contract was the sole fault of the owner, who knew or should have known of the restrictions on his own property.

Judgment affirmed.

WILLIAMS, J., concurs.

YOUNG, J., not participating.