Bell v. Dimmerling
| Decision Date | 03 March 1948 |
| Docket Number | 31132. |
| Parties | BELL v. DIMMERLING et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
A written instrument, signed by the owner of real estate and accepted by a licensed real estate agent, which provides in substance that in consideration of the agreement of the agent to use his efforts to find a purchaser for such real estate he shall have the exclusive right for a specified time to sell the same and if the same is sold during such time the owner will pay a stated commission, becomes a contract binding on the owner when the agent does in fact use his efforts to find a purchaser, and if the owner sells the property during the time specified, he is liable to the agent for the payment of the stated commission.
Appeal from Court of Appeals, Columbiana County.
On July 11, 1945, Ann Bell filed her petition in the Municipal Court of East Liverpool against Henry Dimmerling and Mary Dimmerling to recover a commission in connection with the sale of defendants' real estate. The petition and the exhibit incorporated therein are as follows:
'Now comes the plaintiff and for her cause of action avers and says that she is duly licensed as a real estate broker by the State of Ohio.
'Plaintiff further says that on or about the 25th day of April, 1945 plaintiff and defendant entered into a written agreement based upon a valuable and sufficient consideration, a copy of which agreement is hereto attached and marked Plaintiff's Exhibit 'A' and included therein as fully as if rewritten herein and in which the plaintiff was appointed as the exclusive agent of the defendants for a period of ninety (90) days from the date thereof to sell real estate of the defendant located on Anderson Blvd., East Liverpool, Ohio for the sum of Seven thousand five hundred ($7,500) Dollars and defendant agreed to pay the plaintiff a commission of five percent (5%) of the amount received from the sale of said property.
'Plaintiff further says that she made diligent effort to sell said real estate covered by aforesaid written contract and has performed all of the acts which she agreed to perform under the terms of said contract.
'On July 6, 1945, the defendant notified the plaintiff that he had sold the aforesaid real estate and refused to comply with or carry out the terms of his contract with the plaintiff and to pay plaintiff the commission agreed to be paid by defendant.
'Plaintiff says that there is due and owing to her from the defendant by virtue of said agreement aforesaid, and for work and labor the sum of $375 together with interest thereon at the rate of six percent (6%) per annum from the 6th day of July, 1945.
'Wherefore, plaintiff prays judgment against the defendants in the sum of $375 with interest thereon at the rate of six (6%) percent per annum from the 6th day of July, 1945, and costs of suit.'
'Exhibit A.
'Standard Exclusive Agency Contract
'Approved by the State Board
'of Real Estate Examiners
'In consideration of your agreement to use your efforts in finding a purchaser for my property, I hereby grant you the exclusive right for a period of ninety days from date hereof, to sell property known as Anderson Blvd. and more fully described on reverse side hereof for the sum of $7,500 payable $7,500 cash or at any other price, terms or exchange to which I may consent.
'If you are successful in finding a purchaser for my property, or if the same is sold or exchanged during the term of your exclusive agency, or is sold within three months after the period of this agency to anyone with whom you have negotiated with respect to a sale during the period of this agency and of whom I have notice, I agree to pay commission of 5% upon the price at which same may be sold or exchanged.
Defendants filed a demurrer to the petition, on the ground that it 'does not state facts which show a cause of action.'
The Municipal Court sustained the demurrer. Plaintiff declined to plead further, whereupon the petition was dismissed and judgment was entered for the defendants.
On appeal to the Court of Common Pleas of Columbiana county, that court reversed the judgment below and remanded the cause for further proceedings.
The defendants then took an appeal on questions of law to the Court of Appeals which affirmed the judgment of the Court of Common Pleas.
The case is here for determination on its merits, a motion to require the Court of Appeals to certify its record having been allowed.
Vodrey, Vodrey, Buzzard & Shay, of East Liverpool, for appellants.
Clark & Steele, of East Liverpool, for appellee.
The following two reasons are advanced by counsel for the defendants as to why the judgment of the Court of Appeals should be reversed and final judgment rendered for the defendants:
1. The paper writing relied on by plaintiff is an 'exclusive agency contract' and the defendants themselves were at liberty to sell their property at any time without becoming liable to the plaintiff for the payment of a commission.
2. Such paper writing is no more than an offer to enter into a unilateral contract, imposing no obligation on the plaintiff to do anything; mutuality and consideration are therefore lacking and the defendants were not bound in any way prior to the time plaintiff actually produced a qualified purchaser for the property.
We can agree with neither of these propositions.
As to the first, it is a primary rule in the construction of contracts that the form or name the parties may give an instrument will not control its interpretation. 17 Corpus Juris Secundum, Contracts, § 294; 12 American Jurisprudence 776, Section 242.
Notwithstanding the instrument in issue is captioned 'Exclusive Agency Contract,' it is expressly stipulated in the body thereof that the plaintiff is granted 'the exclusive right for a period of ninety days from date hereof, to sell property' and 'if the same is sold or exchanged during the term of your exclusive agency * * * I [the owner] agree to pay commission of 5% upon the price at which same may be sold or exchanged.' (Italics ours.)
Many of the cases draw a clear-cut distinction between agreements providing merely for 'exclusive agencies' to sell property and those which grant the 'exclusive right' to sell. Where the particular agreement grants only an exclusive agency to another, the owner may sell his property (to one not produced by the agent) without liability to the agent for the payment of a commission; but where the agreement grants the exclusive right to sell, coupled with a promise to pay a commission in the event a sale is made, the owner may not sell to any person during the life of the agreement, whether produced by the agent or not, without incurring liability to the agent for the payment of the commission stated in the agreement. Walter v. Libby, 72 Cal.App.2d 138, 164 P.2d 21; Harris v. McPherson, 97 Conn. 164, 115 A. 723, 24 A.L.R. 1530; Boggess Realty Co. v. Miller, 227 Ky. 813, 14 S.W.2d 140; Smith v. Preiss, 117 Minn. 392, 136 N.W. 7, Ann.Cas.1913D, 820; Martin Realty Co. v. Fletcher, 103 N.J.L. 294, 136 A. 498; Lewis v. Smith, Tex.Civ.App., 198 S.W.2d 598; 12 Corpus Juris Secundum, Brokers, § 94; 2 Restatement of Agency 1058, Section 449, comment b.
It is flatly announced in the opinion in the case of Turner v Baker, 225 Pa. 359, 362, 74 A. 172, 173, that 'If an owner of real estate chooses to make a contract with a broker, in which it is stipulated that the broker shall have the exclusive right to sell the property within a specified time, and that he shall be entitled to receive a certain commission if a sale be made within the time designated, no matter who makes it, he is bound by its terms, and cannot be relieved from a bad bargain because his agreement...
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