Mooney v. Green
| Decision Date | 06 January 1982 |
| Citation | 446 N.E.2d 1135,4 Ohio App.3d 175 |
| Parties | , 4 O.B.R. 276 MOONEY, Appellant, v. GREEN et al., Appellees. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. A complaint seeking to recover a commission on the sale of real property is an action for money only and, as such, is a legal action, entitling plaintiff to a trial by jury. R.C. 2311.04.
2. Consideration is not insufficient merely because it is inadequate, and unless there is a showing of fraud, the contract, which the parties have lawfully entered into, is valid.
3. Abandonment is a matter of intention and requires an intentional relinquishment of contractual rights, which may be implied from the conduct of the parties. Abandonment is a question of fact for the trier of fact.
Waite, Schneider, Bayless & Chesley and Charles M. Meyer, Cincinnati, for appellant.
Herman G. Cartwright, Jr., Wilmington, for appellees.
This cause came on to be heard upon the appeal from the Court of Common Pleas of Clinton County.
Now, therefore, the assignments of error having been fully considered, are accordingly passed upon in conformity with App.R. 12(A) as follows:
Appellee-landowners, executed an "exclusive selling agency contract" by which they employed appellant as their exclusive agent and realtor to procure a purchaser for their real estate and granted appellant "the sole and exclusive right to sell said real estate." The contract was executed on August 10, 1976, by appellees and accepted by appellant on that date; the termination date of said agreement was September 1, 1977.
Appellant performed some services and incurred some expenses in his endeavor to obtain a purchaser for said real estate, but did not successfully procure a buyer.
Several months after the execution of the agreement, the appellees expressed dissatisfaction with the efforts of the appellant and endeavored to unilaterally terminate or cancel the contract. The appellant rejected such proposal.
During the term of the contract, appellees, through another realtor, obtained a buyer and closed the sale of the property.
Appellant filed his complaint and jury demand seeking to recover a commission on the sale of said property. Appellant filed a motion for summary judgment, which the trial court denied, and the matter was set for trial.
On the date of the scheduled trial, for some unspecified reason, no jury was summoned, and the trial court, from the bench, concluded " * * * it is a contractual question and it involves, as I read the file, questions of law and you are not entitled to a jury." Appellant took exception to the ruling but was required to proceed to a bench trial. The record discloses no waiver of appellant's jury demand.
The trial court, in favor of the appellees, overruled the appellant's motion for a new trial from which ruling the appellant filed a timely notice of appeal.
The trial court's ruling on appellant's jury demand is the basis for his first assignment of error, to wit:
In its entry overruling appellant's motion for summary judgment, the trial court stated:
"The only questions to be decided upon final hearing of this case are: (1) did the plaintiff comply with and perform his obligations under the contract, and, if he did not, then (2) was the contract terminated, cancelled or rescinded by the defendants."
The trial court made a factual determination of the questions posed on the motion for summary judgment.
This court believes that the trial court usurped the prerogative of the jury and effectively and prejudicially denied the appellant his right to trial by jury.
As is pointed out by the appellees, not all causes are constitutionally assured a jury trial; however, the cause sub judice was an action for money only and, as such, is a legal action, entitling appellant to a trial by jury. R.C. 2311.04; Averill Coal & Oil Co. v. Verner (1872), 22 Ohio St. 372.
Accordingly, we find the appellant's first assignment of error to be well taken.
For the purposes of this decision, the court will consolidate the second and third assignments of error, to wit:
The record on appeal establishes the execution of the "exclusive selling agency contract" by the appellees and its acceptance by the appellant; the record also indicates some effort and service by the appellant in performance of the contract.
In pertinent part, the relevant provisions of the contract provide as follows:
The real estate was sold during the period of the contract by appellees through the auspices of another realtor or another person.
The contract herein not only employed appellant as the sole exclusive agent for sale of appellees' property, but additionally granted to appellant the sole and exclusive right to sell. It is essential to the determination of the issue raised that this distinction be recognized.
It is a basic principle that the owner of real property retains the inherent right to sell the property himself, even during the term of employment of a broker or agent to sell it unless the broker's contract, in some manner, imposes liability upon the owner for such sale by a grant to the broker of an exclusive right to sell.
The court's syllabus in Bell v. Dimmerling (1948), 149 Ohio St. 165, 78 N.E.2d 49 , provides as follows:
"A written instrument, signed by the owner of real estate and accepted by a licensed real estate agent, which provides in ...
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