Kramer v. Roth, Jr.

Joseph L. Roth, Jr., and George E. Fessler sued Louis Kramer and Mary Kramer for a commission for the sale of real estate.

The petition alleges that Roth and Fessler had a written contract as real estate brokers with the Kramers giving plaintiffs the "exclusive rights to sell their property consisting of eleven and six hundred and twenty-four thousandths (11.624) acres of land located six hundred (600) feet north of Glenway Avenue and three hundred and fifty (350) feet west of Rutledge Avenue, Cincinnati, Ohio, for a period of one (1) year."

At the conclusion of plaintiff's evidence, the defendants moved for an instructed verdict on the grounds that there was no sale or negotiation. This motion was overruled, the defendants offered evidence, and at the conclusion of all the evidence defendants' motion for an instructed verdict was renewed upon the former ground, and also because the plaintiffs had failed to plead or prove they were licensed real estate brokers.

The plaintiffs made a motion for an instructed verdict, and immediately thereafter the defendants reserved the right to have the case submitted to the jury if the court decided their motion against them.

The court then instructed a verdict for the plaintiffs in the sum of $1,000, and this proceeding is brought to reverse the judgment entered on that verdict.

The controlling questions presented by the record are:

Were Roth and Fessler licensed real estate brokers?

Did the court err in instructing a verdict after the defendants reserved the right to have their case submitted to the jury in case their motion was decided against them?

Considering these questions in the reverse order, the rule is that if both the plaintiff and defendant make a motion for an instructed verdict the parties waive the jury and submit the cause to the court for its determination, but if either party reserves the right to have its case submitted to the jury and the motion is decided against it, the court then must submit the case to the jury. See Perkins v. Board of County Commissioners ofPutnam County, 88 Ohio St. 495, 103 N.E. 377.

Section 6373-48, General Code, provides: "No right of action shall accrue to any person, firm or corporation for the collection of compensation for the performance of the acts mentioned in Section 1 [Section 6373-25] of this act without alleging and proving that such person, firm or corporation was duly licensed as a real estate broker or a real estate salesman, as the case may be, at the time the cause of action arose."

Section 6373-25, General Code, defines a "real estate broker" as follows: "``Real estate broker' means a person, firm or corporation who, for a commission, compensation or valuable consideration, sells, or offers for sale, buys, or offers to buy, negotiates the purchase or sale or exchange of real estate, or leases, or offers to lease, rents, or offers for rent, any real estate, interest therein or improvement thereon, for others."

It is obvious that the term "real estate broker" is not synonymous with "licensed real estate brokers." The allegations and proof required by General Code, Section 6373-48, were absent in this case. Consideration of other questions is rendered unnecessary, as we are, therefore, compelled to hold that the verdict should not only not have been instructed for the plaintiffs, but ought to have been instructed for the defendants, and this court, therefore, reverses the judgment of the court of common pleas, and renders judgment herein for the plaintiffs in error.

Judgment reversed and judgment for plaintiffs in error.

ROSS, J., concurs.

HAMILTON, J., concurs in the judgment.