Carey v. Conn

• Decision Date: 20 February 1923
• Docket Number: 17644
• Citation: 107 Ohio St. 113,140 N.E. 643
• Parties: Carey, Admr., V. Conn.
• Court: Ohio Supreme Court

140 N.E. 643

107 Ohio St. 113

Carey, Admr., V. Conn.

No. 17644

Supreme Court of Ohio

February 20, 1923

Contracts - Real estate broker - Agreement to find buyer - Agent entitled to commission, when - Res adjudicata - Action by agent not barred, when - Specific performance by owner against purchaser.

1. Where a real estate agent or broker makes a contract with the owner of property "to find a buyer for his real estate at a commission of two per cent. for his services," and pursuant thereto performs such services by producing the buyer, and the owner enters into a written contract of sale with such buyer, the real estate agent or broker, in the absence of fraud, is entitled to his commission for his services.

2. If the contract between owner and purchaser, for any reason fails of performance, and the owner thereafter brings a suit in specific performance upon such contract against such purchaser, the agent not being a party thereto, the judgment in the suit for specific performance is not res adjudicata against such agent.

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Burton C. Conn brought suit in the court of common pleas of Van Wert county, alleging that one J. B. Carey employed him "to find a buyer for his real estate in Union township, Van Wert county, Ohio," and that Carey promised in writing to pay plaintiff "a commission of two percent for services as agent for selling his real estate holdings in Union township Van Wert County, Ohio, provided said sale was made by July 1 1912."

Plaintiff further alleged that he, "relying upon said promise of said decedent, J. B. Carey, performed such service for him, that, on the twenty-ninth day of June 1912, said J. B. Carey, with his wife, Samantha Carey, sold said premises to the purchaser, furnished by this plaintiff A. C. Stutsman, trustee, for the sum of sixty thousand dollars ($60,000.00)," by reason whereof Conn claimed he was entitled to a judgment against R. B. Carey, as administrator of the estate of said J. B. Carey, now deceased.

Plaintiff further alleged that such service was unpaid for during the lifetime of J. B. Carey, and that he duly presented his claim to the administrator, who had rejected same.

The defendant answered, and admitted the formal averments of the petition and the signing of the writing in question, but denied generally the other allegations of the petition. He further averred, as defense to such action, the doctrine of res adjudicata growing out of a certain suit in specific performance between the decedent, J. B. Carey, and one A. C. Stutsman, touching the real estate in question, in which action judgment was rendered in favor of Stutsman, which cause was thereafter appealed to the court of appeals of Van Wert county by decedent, and a like judgment therein rendered upon the pleadings and the evidence, and no further prosecution of error had.

The defendant further pleaded that the judgment in that action of specific performance "is conclusive in evidence that no proper and valid contract was...