Pastor v. Silvester

SULLIVAN, PJ.

Evidence was offered tending to show that in case of the default of the commission agreed upon that then and thereupon a recovery could only be had by testing out the question as to who was responsible for the rescinding of the agreement as it will be observed that this situation arises out of a reading of the second clause of the paragraphs above quoted.

The court excluded this testimony and we think it was prejudicial error. The offer to prove showed that the defendants were ready and willing to go forward with the deal but that because of a lack of funds, the other party was unable to consummate the provisions of the contract and the court apparently relied on Carey v. Conn, 107 OS. 113 as authority for excluding the testimony but we do not think this case applies.

There is no question but that a contract between a real estate broker and a property owner, to find a buyer, is enforcible, in the absence of fraud, where there is a performance pursuant to the terms of the contract, and especially where a written contract is entered into with the buyer and the broker, but in the instant case there is an entirely different question arising out of the terms of the agreement between the parties to this litigation. It is distinctly agreed that in case of a contest or disagreement as to the commission that then and thereupon there shall be ascertained wherein the fault lies and which is the party responsible for the rescinding of the contract. Under this clause of the contract, we think that the evidence which was excluded and which would have determined the question as to who was guilty of the reeission was clearly competent and its rejection, in our judgment, was prejudicial to the rights of the complaining party.

Holding these views the judgment of the lower court is reversed and the cause is remanded for further proceedings according to law.

(Vickery and Levine, JJ., concur.)