J. A. Wigmore Co. v. Chapman , 4 Ohio Law. Abs. 42 ( 1926 )

KINKADE, J.

1. When the owner of real estate lists the same with a broker to find a purchaser for the property at a stated selling price, and agrees to pay the broker a commission for finding a purchaser, if within a reasonable time, where no time is fixed by the parties, the broker finds and presents a purchaser ready, willing and able to take the property at the price and upon the terms stipulated before he is notified by the owner of any change in the selling price, or of any sale of the property by the owner or by another broker, and before the owner has withdrawn the authority of the broker to sell, the presenting to the owner of such a purchaser by the broker will complete his part of the contract and entitle him to recover his commission.

2. In an action upon a contract where the defendant by answer denies the making of the contract set up in plaintiff’s petition, and then sets up a contract substantially different from the one on which the plaintiff bases his action, which contract set up by the answer is denied by the plaintiff in his reply, this state of the pleadings does not shift the burden of proof from the plaintiff to the defendant, and it is error for the trial judge to charge the jury that the burden of establishing the contract, set up in the answer, by a preponderance of the evidence rests upon the defendant. The List & Son Company v. Chase, 60 Ohio St., 42, and Dykeman v. Johnson, 83 Ohio St., 126, approved and followed.

Judgment reversed.

Marshall, CJ., Jones, Matthias, Day, Allen and Robinson, JJ., concur.