Staub v. Chicota

This is an appeal on questions of law from a judgment entered on a verdict rendered by a jury of 12 in favor of Herbert Staub, plaintiff, and against Myron Chicota and Paul Mularchik, defendants, in the Court of Common Pleas of Cuyahoga County. Defendant Paul Mularchik only is appealing.

Plaintiff and defendant-appellant were duly licensed real estate salesmen employed by a duly licensed real estate broker, Myron Chicota, who conducted a real estate office in the city of Strongsville, Ohio. Chicota had other activities and spent little time in the office. Paul Mularchik managed and conducted the affairs of the real estate office. A parcel of land was sold producing a commission of $5,000. Plaintiff in his third amended petition averred that:

"It was orally agreed between him and the other two (2) defendants that if they or either of them would procure a buyer and sell this property that the defendant, Myron Chicota, would receive one-half (1/2) of the commission and that the plaintiff herein would receive one-fourth (1/4) of the commission and the defendant, Paul Mularchik, would receive the other one-fourth (1/4) of the commission."

The record shows a motion for a directed verdict by defendant Mularchik at the close of plaintiff's evidence and again at the close of all the evidence. These were overruled.

The trial judge in charging the jury said that the sole and only issue for it to decide was whether there was an oral contract made between the plaintiff and the defendants under which it was agreed, that if the plaintiff or Mularchik, or either of them, would procure a buyer and sell the property in question, then defendant Chicota was to receive one-half of the commission, defendant Mularchik was to receive one-fourth of the commission, and plaintiff Staub was to receive the remaining one-fourth of the commission. The unanimous verdict of the jury indicated that it found such an agreement to have been made.

The appellant presents but one assignment of error in this court:

"* * * that the trial court errored [sic] in denying defendant's (appellant herein) motion for a directed verdict at the conclusion of the plaintiff's (appellee herein) case (R. 85, 86), or at the conclusion of all the evidence (R. 128), which error was prejudicial to the rights of the appellant herein."

The record shows that the appellant went forward with his defense upon the overruling of the motion for a directed verdict at the close of plaintiff's case. He, as a consequence, waived any error that may have been committed by the court with respect to that motion. Halkias v. Wilkoff Co., 141 Ohio St. 139,47 N.E.2d 199; Wilkeson, Admr., v. Erskine Son, Inc., 145 Ohio St. 218, 61 N.E.2d 201. As a result, we have before us but one question for determination, namely: Should the court have granted the motion for a directed verdict at the close of all the evidence?

The parties conceded in the trial of this cause that the defendant Chicota was entitled to one-half of the commission as the broker in the transaction and that he instructed the escrow agent to pay the remaining one-half of the commission to defendant Mularchik.

The bill of exceptions discloses evidence of a substantial nature that it is customary in the real estate business for salesmen to agree upon the proportion each is to receive of a commission allotted to them in a given transaction; that the appellant Mularchik was in charge of and managed the real estate office for broker Chicota; that plaintiff-appellee and defendant-appellant orally agreed to divide the commission allocated to them in the real estate transaction in question equally between themselves as an incentive to carry on the business of the office, regardless who was the procuring cause of the sale; that each played some part in the attempt to sell the parcel of land in question; and that defendant Chicota knew of the understanding between Staub and Mularchik concerning this commission.

We are of the opinion that the record shows a prima facie case was made out against the defendant Mularchik under the third amended petition, which required the court to submit the case to the jury for determination. We hold, therefore, that the trial court committed no error in overruling the motion of the appellant for a directed verdict at the close of all the evidence presented in the case.

Judgment affirmed.

HURD, P. J., concurs.