Citation Numbers: 17 Ohio App. 232
Judges: Pardee, Punk, Washburn
Filed Date: 12/21/1922
Status: Precedential
Modified Date: 7/20/2022
In this action, plaintiff, The Kimball-Childs Realty Co., sued the defendant, C. E. McSweeney, to recover a real estate commission claimed to be due under a listing contract signed by McSweeney.
The jury found for McSweeney, and the case is before us on error proceedings.
The terms of sale specified in the listing contract by McSweeney were $6000 cash and a balance of $6000 secured by mortgage on the property.
Promptly after the listing contract was signed, the plaintiff company prepared an agreement bv which McSweeney agreed to sell, and Ella V. Duckworth, hereinafter referred to as the purchaser, agreed to buy the property for the price named in the listing contract, but, instead of $6000 cash, the contract provided for a cash payment of $40 and a payment of $5960 in five days.
The company procured McSweeney to sign this contract, and then went to the home of the prospective purchaser and had her sign the same and pay the $40, which was turned over by the company to McSweeney. McSweeney did not see the purchaser and had no dealings directly with her, and when she signed the contract she was not financially able to carry out its terms.
The company then prepared another writing, by the terms of which the parties by mutual consent continued the original contract for four days, “at which time a land contract will be entered into by each and both parties for the said sale and purchase upon payment of $1000 by the buyer, unless both parties mutually agree to abide by the original contract referred to.”
The company procured McSweeney to sign this paper, and later took it to the purchaser and had her sign it.
Here again McSweeney and the purchaser did not see each other and had no direct negotiations.
At the expiration of the four days, McSweeney again appeared at the office of the company, ready, able and willing; but the purchaser did not appear, and was not ready, able and willing to complete the purchase, and nothing further was done in the matter.
This is not a case where the real estate broker brings the buyer and seller together and they by direct negotiations agree upon a sale and enter into a binding contract of sale. In such a case, where the purchaser is financially responsible, so that the sale can be enforced, or where the seller has for himself determined the purchaser’s ability to perform, and has agreed to take the promise of the purchaser, there is reason in saying that the broker has earned his commission; but a different situation is presented where the parties are strangers. and never saw each other, and there are no
There was no error in the court so charging in tMs case.
Under the circumstances set forth above, if the sole and only reason why the transaction was not completed was the purchaser’s financial inability to perform, the broker has not earned and should not be entitled to his commission.
While it is conceded that the purchaser in this case was not financially able to carry out the terms of the original agreement, above referred to, it is claimed that the parties, through the
The second writing is so indefinite and uncertain, and so lacking in essential provisions, as to be unenforceable as a separate agreement; it specifically-continued the original contract in force for four days, but it also provided, if both parties did not agree to abide by the terms of the original contract, that then “a land contract will be entered into by each and both parties for the said sale and purchase upon payment of $1000 by the buyer,” but no other terms of such a land contract are mentioned. That writing was not a contract of sale on terms other than those contained in the original agreement. It was merely an agreement to enter into an agreement, and therefore the broker could not recover on the theory that he furnished a purchaser ready, able and willing to purchase on some terms other than those in the original agreement; indeed, we regard the second writing, which the broker drew and procured both parties to sign, as nullifying the original agreement “unless both parties agreed to abide by” the same, and, as we have said, there being no binding-agreement of sale substituted therefor the broker having procured the signing of such writing is bound thereby as much as though he was a formal party thereto.
It is important to remember that the seller in this case was always ready, able and willing to
As applied to the facts disclosed by the record in this ease there was no prejudicial error in the charge, and substantial justice ivas done by the judgment of the court below.
Judgment affirmed.