Pfanz v. Hamburg

• Decision Date: 15 March 1910
• Docket Number: 11389
• Parties: Pfanz v. Humburg Et Al.
• Court: Ohio Supreme Court

91 N.E. 863

82 Ohio St. 1

Pfanz v. Humburg Et Al.

No. 11389

Supreme Court of Ohio

March 15, 1910

Real estate agent - Entitled to his commission when property actually sold - Not an agreement of parties to buy, when - Binding conditions of contract between vendor and agent.

P., a real estate agent, accepted the following written proposition:

"CINCINNATI OHIO, May 2, 1905.

"JOHN PFANZ, Agent: I hereby authorize you to sell for me the following described real estate, located at 2241 Flora Place for the sum of three thousand five hundred ($3,500.00) dollars on the following terms: title to be perfect, free and unincumbered, payments to be cash, and I agree to give you sole authority to sell the same for the period of ten days and agree to pay you for services when the property is sold.

"MAGDALENA HUMBURG,

"WILLIAM HUMBURG."

P procured one who said he was willing to take the property at said price, and he paid the agent $9.75, for which the agent gave a receipt, and turned the payment over to the vendors but no written contract of purchase was entered into, nor was possession taken by the alleged purchaser, who afterwards refused to take the premises or complete the purchase by entering into an enforceable contract.

Held: That the condition in said contract of employment, "to pay for services when the property is sold," has not been complied with by the agent and he is not entitled to recover commission.

The controversy between the parties was first heard by a justice of the peace, where the plaintiff in error prevailed and recovered judgment against the defendants in error. The latter appealed to the court of common pleas, where an issue was made up by the petition and answer thereto. As the contract between the parties is copied in the petition, we make the petition a part of this statement, as follows: "For his cause of action against the defendants herein, plaintiff says that on May 2, 1905, he entered into a contract in writing with the defendants herein, a copy of which is as follows, to-wit:

'CINCINNATI, OHIO, May 2, 1905.

'JOHN PFANZ, Agent: I hereby authorize you to sell for me the following described real estate, located at 2241 Flora Place, for the sum of three thousand five hundred ($3,500) dollars on the following terms: title to be perfect, free and unincumbered; payments to be cash, and I agree to give you sole authority to sell the same for the period of ten days, and agree to pay you for services when the property is sold.

'MAGDALENA HUMBURG.

'WILLIAM HUMBURG.'

"Plaintiff says that on or about May 9, 1905, he procured in writing a purchaser for the said premises, in accordance with the terms of said contract, who was ready, able and willing to purchase said property in accordance with the terms of the contract above set forth, and so notified the defendants.

"Plaintiff says further that having done and performed all the things by him to be done under said contract on his part, he made demand of said defendants for seventy dollars, being the amount due him for compensation on said sale, and a reasonable sum due him for services thus rendered, but that the defendants refused to pay him said sum of seventy dollars thus due him as aforesaid."

Then follows a prayer for judgment for the amount and interest thereon.

The following answer was filed: "And now come the defendants and for answer say that they admit that this cause comes into this court on appeal from the judgment of James M. Brant, justice of the peace in and for Cincinnati township, and that they entered into the written contract dated May 2, 1905, a copy of which is set out in the petition. For further answer these defendants deny each and every other allegation in the petition contained."

The case came to trial before a jury, and after the plaintiff had introduced his testimony and rested, the defendants moved the court to direct a verdict in their favor, and the court sustained the motion, overruled motion for new trial, and rendered judgment on the directed verdict. The circuit court affirmed the judgment.

Mr. A. L. Herrlinger and Mr. Edward T. Dixon, for plaintiff in error.

Where the real estate agent finds a purchaser who is ready, willing and able to take the property at the stipulated price, no written contract of purchase signed by the prospective purchaser is necessary to enable the agent to recover his commission. Weatherhead v. Ettinger, 78 Ohio St. 104; Brooks v. Wortendyke, 18 Dec., 789; Gonzales v. Broad, 57 Cal. 224; Barber v. Heade, 10 C. C., N. S., 343; Heintz v. Boehmer, 4 N. P., 226; Duclos v. Cunningham, 102 N.Y. 678; Casady v. Seely, 29 N.W. 432; Godley v. Haley, 17 Cir. Dec., 606; McFarland v. Lillard, 2 Ind.App. 160; McDonald v. Smith, 108 N.W. 291; Baars v. Hyland, 65 Minn. 150; Grosse v. Cooley, 45 Minn. 188; Christensen v. Wooley, 41 Mo. App., 53; Bailey v. Chapman, 41 Mo. 536; Nesbitt v. Helser, 49 Mo. 383; Hayden v. Grillo, 35 Mo. App., 635; Rapalje on Real Estate Brokers, 153; Phelan v. Gardner, 43 Cal. 311; Kock v. Emmerling, 22 How., 69; Branard v. Monnot, 33 How. Pr., 440; Flegel v. Dowling, 102 Pac. Rep., 178; Manker v. Tough, 98 Pac. Rep., 792; Willard v. Wright, 89 N.E. 559; Duffy v. Hobson, 40 Cal. 240; Campbell v. Galloway, 148 Ind., 440; Furst v. Tweed, 93 Ia. 300; Halsey v. Monteiro, 92 Va. 581; Fitzpatrick v. Gilson, 176 Mass. 477; Cook v. Welch, 9 Allen, 350; Desmond v. Stebbins, 140 Mass. 339; Middleton v. Thompson, 163 Pa. St., 112; Keys v. Johnson, 68 Pa. St., 42.

If, however, a written contract is essential, sufficient memoranda passed between Ohlinger and the Humburgs through the agency of Pfanz to constitute the same. It is contended on behalf of plaintiff in error that the paper writing, which Pfanz gave Ohlinger for part payment of the purchase money, and the paper writing which Pfanz received from Mrs. Humburg, when he turned this money over to her, were separately and together such a memorandum as took the contract out of the statute of frauds. In other words, the broker at that point and for that purpose became the agent of both the seller and purchaser so as to comply with the statute of frauds. Palmer v. Insurance Co., 13 Mo. App., 471; Story on Agency (3 ed.), Sections 28, 31; Wharton on Agency, Section 715; 4 Am. & Eng. Ency. Law (2 ed.), 966; Hinckley v. Arey, 27 Me. 362; Coddington v. Goddard, 16 Gray, 436; Saladin v. Mitchell, 45 Ill. 79.

Receipts, such as are in evidence in this case, setting forth fairly and with reasonable certainty the premises to be sold and the terms of the contract, have been repeatedly held to comply with the requirements of the statute of frauds, and to constitute contracts specifically enforceable. Browne on Statute of Frauds (5 ed.), Section 346; Lumber Co. v. Corey, 140 N. Car., 468; Timber Co. v. Lumber Co., 85 Pac. Rep., 338; Barickman v. Kuykendall, 6 Blackford (Ind.), 23; Ellis v. Deadman's Heirs, 7 Bibb (Ky.), 467; Williams v. Morris, 95 U.S. 445; Crotty v. Effler, 54 S. E. Rep., 345; Ellis v. Bray, 79 Mo. 227.

A mere proposal by the owner delivered to the purchaser and assented to by him, though not signed by the latter, is a sufficient memorandum, and the agreement is in law "in writing and signed." Furnace Co. v. Railroad Co., 22 Ohio St. 451; Timber Co. v. Lumber Co., 85 Pac. Rep., 338; Thayer v. Luce, 22 Ohio St. 62; Forthman v. Deters, 206 Ill. 159; Lowber v. Connit, 36 Wis. 176; Vilas v. Dickinson, 13 Wis. 488; Memory v. Niepert, 131 Ill. 623; Ames v. Moir, 130 Ill. 583; Ullsperger v. Meyer, 217 Ill. 263; Johnson v. Dodge, 17 Ill. 433; 3 Parsons on Contracts (9 ed.), 10, 11; Gartrell v. Stafford, 12 Neb. 545; Lee v. Cherry, 85 Tenn. 707.

There is no distinction in law between the case of a real estate agent who undertakes to sell a certain piece of property, and that of one who undertakes to find a purchaser for it. McFarland v. Lillard, 2 Ind.App. 160; Barnard v. Monnot, 33 How. Pr., 440; Barber v. Heade, 10 C. C., N. S., 343; Treat v. De Celis, 41 Cal. 202; Duffy v. Hobson, 40 Cal. 240; Goss v. Broom, 31 Minn. 484; Reynolds v. Tompkins, 23 W.Va. 229; Lockwood v. Rose, 125 Ind. 588.

Where the actual sale fails of consummation because of the seller's inability to furnish a good title, the real estate agent is not thereby precluded from recovering his commission. Godley v. Haley, 17 Cir. Dec., 606; Carpenter v. Rynders, 52 Mo., 278; Phelps v. Prusch, 83 Cal. 626; Hamlin v. Schulte, 34 Minn. 534; Collins v. Fowler, 8 Mo. App., 588; Christensen v. Wooley, 41 Mo. App., 53; O'Niel v. Printz, 115 Mo. App., 215; Davis v. Morgan, 96 Ga. 518.

We respectfully submit that where a sale fails of consummation because of the default of the seller, the broker may always recover his commissions from the seller, regardless of whether there is a binding contract of sale or not.

This doctrine is so universal and so firmly established, and so intricately interwoven with the law of commission brokers, that we find numerous authorities sustaining it, even in the brief of opposing counsel. Brooks v. Wortendyke, 18 Dec., 789; Kronenberger v. Bierling, 76 N.Y.S. 895; Fittichauer v. Van Wyck, 92 N.Y.S. 241; Huggins v. Hearne, 74 Mo. App., 86.

Messrs. Renner & Renner and Mr. Eugene Heim, for defendants in error.

The agent agreed to be paid for his services when the property was sold. Counsel admit that Pfanz acted by and under the authority of the written contract set out in the petition on appeal. By it he was to be paid when the property was sold and this language was his own on his blank. He therefore entered into a specific contract, and was bound by its terms, and no other. The property was not sold, and such failure was caused by the prospective purchaser. As between the sellers and their agent, the reason for such failure is...