Quigley v. Cleveland Electric Illuminating Co. , 34 Ohio App. 233 ( 1929 )

Plaintiff in error and defendant in error were plaintiff and defendant respectively in the trial court, and will be so alluded to here. The action was for fraud, alleged to have been perpetrated upon plaintiff by the defendant company, whereby plaintiff, as a real estate broker and agent, received from a person other than the defendant company a less sum of money than his claimed commission. Upon trial by jury, the court at the close of plaintiff's evidence in chief sustained a motion for a directed verdict for defendant. A new trial was denied, and a judgment entered upon the verdict. This proceeding in error is prosecuted to reverse that judgment.

The facts out of which the controversy arose are as follows: Plaintiff, James B. Quigley, was a real estate agent and broker in Cleveland. He specialized in industrial and commercial properties. In April, 1925, a property known as the United States Copper Product Company was orally listed with him for sale. The United Banking Trust Company, the Guardian Trust Company, and the Hunkin-Conkey Construction Company were the owners of the property; the record title to it, however, had been taken in the name of the United Banking Trust Company. A Mr. John Zimmer, who was treasurer of the United Banking Trust Company, had charge of the property and looked after it for the owners. He listed it with the plaintiff. On November 10, 1926, a Mr. F.W. Coen, who was a representative of the defendant company, called at the offices of plaintiff and informed plaintiff that the defendant company was desirous of purchasing a site for a warehouse and storage yard. At the request of Mr. Coen, plaintiff prepared a selection of listed properties which he thought might meet defendant's requirements. On November 15, 1926, plaintiff exhibited to Mr. Coen, amongst other properties, the United States Copper Product Company's plant. Mr. Coen was well impressed with the property, and stated to plaintiff that it met the requirements of his company. He requested plaintiff to have blueprints, showing the exact lines of the property, sent to his office, which plaintiff did on that evening. An arrangement was made to meet the next day for the purpose of having Mr. Lindsey, president of the defendant company, and two of its engineers, inspect the property. Plaintiff on the evening of November 15 told Mr. Zimmer that he had shown the property to a representative of the defendant company, and that he had the defendant company as a prospective purchaser of it. On November 16, and for several days thereafter, plaintiff sought to have the inspection of said property made by Mr. Lindsey and the engineers, but was unable to get in touch with Mr. Coen, who had promised to make arrangements for the inspection. On November 16, without plaintiff's knowledge, Mr. Coen, Mr. Lindsey, and two engineers of defendant company inspected the property.

On that afternoon Mr. Lindsey called the United Banking Trust Company and made an appointment with one of its officers to meet him at 9 o'clock the following morning. On the morning of November 17, Mr. Monk and Mr. Hutchinson, both of the Guardian Trust Company, and Mr. Hunkin, president of the Hunkin-Conkey Construction Company, and also a director of the United Banking Trust Company, met with Mr. Lindsey at Mr. Lindsey's office to discuss the purchase of the property. At this meeting Mr. Coen was present part of the time.

The owners were anxious to sell the property. They had purchased it in order to protect their mortgages, and plaintiff had so told Mr. Coen. The owners asked $400,000 for the property. Mr. Lindsey made a counter offer of $350,000, cash. After some further negotiations, and after being told by Mr. Lindsey that the defendant company had not been directed to the property by a broker, the owners offered to take $382,500 for the property. Mr. Lindsey on behalf of the defendant company accepted the offer. Some time thereafter a deed was executed for said property and the purchase price paid.

The persons who were representing the owners at the meeting on November 17 did not know that plaintiff had exhibited the property to the defendant, and fixed the purchase price at $382,500 under the belief that no brokerage commission was to be paid. They, however, knew on that day that the property was listed with plaintiff for sale.

On December 3 plaintiff learned from outside sources of the sale. He demanded of the owners his commission, which, according to the rules of the Real Estate Board of Cleveland, amounted to $9,662.50. After much discussion, the owners paid plaintiff $5,000, and took from him the following receipt:

"Cleveland, Ohio, Dec. 23, 1926. Received of The Guardian Trust Co., The United Banking Trust Co., and The Hunkin-Conkey Construction Co. $5,000.00 in full of all claims and demands to date for commissions and services in reference to the sale of the property known as The United States Copper Products Co. plant located on W. 73rd St. in Cleveland, Ohio, to The Cleveland Electric Illuminating Co. as of Nov. 17, 1926. James B. Quigley."

There are other facts disclosed by the record, but as we see this case they are not controlling, and hence are not mentioned.

It is the claim of the plaintiff that the foregoing facts tend to prove the claimed fraud with its resultant damages, and that in directing a verdict for defendant the trial court invaded the province of the jury, and thereby committed such error as calls for a reversal of the judgment. With this contention we are not in accord.

Admittedly, plaintiff, prior to the meeting of November 17, had told John Zimmer that he had shown the property to a representative of the defendant company. Mr. Zimmer was treasurer of the United Banking Trust Company, and represented the owners of the property in looking after and caring for it. Manifestly his knowledge of plaintiff's activities regarding the property is chargeable to the owners of the property.

The fact that the representatives of the owners at the meeting of November 17 had no knowledge of the part taken by plaintiff in the deal is, of course, of no consequence.

In Neal v. Cincinnati Union Stock Yards Co., 1 C.C. (N.S.), 13, 15 C.D., 299, the court held, at page 16: "While the corporation only is chargeable with that knowledge which comes to each of its servants within the scope of the duties of each of its servants respectively, the corporation as the common head, brain center so to speak, must be held to have the composite knowledge which comes to it through the channels of its several servants. It is not necessary that any one servant should know all the facts. If it were, all a corporation would have to do would be to limit the scope of the duties of each servant, and the corporation could never be held to know all about anything."

In the instant case the owners, in law, knew, prior to the meeting of November 17, that plaintiff had exhibited the property to defendant company. It therefore is of no moment whether defendant through its president made or did not make the claimed representations at the meeting of November 17, as clearly the owners could not have been deceived by representations which they themselves knew to be false when made. Obviously plaintiff is not entitled to any relief whatsoever in the premises.

It occurs to us that further comment is unnecessary. True, there are other questions presented by counsel in their arguments and written briefs, for example, whether or not plaintiff's claim comes within the inhibition of Section 8621, General Code, and whether or not the admitted settlement is a defense to said claim; but as to them we express no opinion. It is not necessary for us to do so in disposing of this case.

Holding these views, it follows that the judgment of the common pleas court should be affirmed.

Judgment affirmed.

HUGHES and WILLIAMS, JJ., concur.

HUGHES and JUSTICE, JJ., of the Third Appellate District, and WILLIAMS, J., of the Sixth Appellate District, sitting in place of VICKERY, LEVINE and SULLIVAN, JJ., of the Eighth Appellate District.