Cincinnati M M Realty, Inc. v. Uckotter

Full title: CINCINNATI M M REALTY, INC., APPELLANT v. UCKOTTER, APPELLEE

Court: Supreme Court of Ohio

Date published: Apr 3, 1968

235 N.E.2d 719 (Ohio 1968)

235 N.E.2d 719

Opinion

No. 41196

Decided April 3, 1968.

Real estate broker — Contract with part owner to procure purchaser — Purchaser procured — Part owner's inability to convey full title — Broker's right to commission.

Where a part owner of real property contracts in writing with a licensed real estate broker to procure a purchaser for such property, and pursuant to the contract the broker does procure a purchaser ready, willing and able to buy at a price acceptable to such part owner, the broker has earned and is entitled to the agreed commission from the part owner, and the right to such commission is not affected by the part owner's failure or inability to produce a deed conveying full title to the property. In the absence of knowledge to the contrary, the broker may assume that the part owner can and will complete the transaction.

APPEAL from the Court of Appeals for Hamilton County.

Joseph G. Uckotter, the appellee herein, owned an undivided one-half interest in certain real property situated in the city of Cincinnati, his sister owning the other half interest. Appellee executed a listing contract with Cincinnati M M Realty, Inc., a licensed real estate broker and appellant herein, to procure a purchaser for the property at a price of $45,000. The broker did procure a purchaser who offered $35,000. Such offer was refused, and an offer of $37,500 was then made. The purchaser was ready, willing and able to pay this price. Appellee and his wife signed a purchase contract accepting the $37,500 offer and unreservedly agreed to convey the property by general warranty deed. At the request of appellee, appellant reduced its commission for procuring the purchaser and arranging the sale from $2,250 to $1,500. However, appellee's sister refused to sell and execute a deed at the price of $37,500; the transaction collapsed, and appellee declined to pay appellant the $1,500 commission agreed on.

Thereupon, appellant instituted an action in the Cincinnati Municipal Court for the $1,500 commission and obtained judgment against Uckotter for that amount. On an appeal to the Court of Common Pleas of Hamilton County, the judgment of the Municipal Court was reversed, and, on a further appeal to the Court of Appeals, the judgment of the Court of Common Pleas was affirmed. The cause is now in this court for decision on the merits following the allowance of the motion to require the Court of Appeals to certify the record.

Messrs. Goldman, Cole Putnick and Mr. Douglas G. Cole, for appellant.

Messrs. Beirne, Wirthlin Manley and Mr. C.R. Beirne, for appellee.

ZIMMERMAN, J.

Appellee Uckotter entered into a written contract with the appellant broker to procure a purchaser for real property in which Uckotter owned an undivided one-half interest. Pursuant to such contract the broker in good faith procured a qualified purchaser for the property at a price which was acceptable to Uckotter, and Uckotter agreed to furnish a general warranty deed of conveyance. The broker fulfilled his part of the contract in producing the purchaser, and the inability or failure of Uckotter to furnish a general warranty deed as he agreed to do did not affect the broker's right to the commission, notwithstanding the broker may have known subsequent to the execution of the contract that Uckotter was not the sole owner of the property.

Uckotter agreed, without qualifications or conditions, to supply the deed, which he did not or could not do, and no blame can be attached to the broker for Uckotter's failure to perform. The broker did what he was employed to do and thereby earned his commission. No obligation rested on the broker to contact the sister and induce her to complete the transaction.

In the situation described, the prevailing rule is thus stated in 12 Corpus Juris Secundum 228, Brokers, Section 95:

"* * * a broker who fulfills his part of the contract will not be deprived of recovery [of his commission] merely by his knowledge that a perfect title cannot be conveyed by the act of the principal alone, as where he has knowledge that the principal is only a part owner * * *; in such case he may reasonably and bona fide believe, and act on the assumption, that the principal will be able to bring about such action as is necessary to consummate the sale. * * *"

Representative cases in accord with the quoted rule are: Jamison v. Harrison, 10 Ohio App. 454; Portis v. Thrash, 216 Ark. 946, 229 S.W.2d 127; Reynolds v. Ashabranner, 212 Ark. 718, 207 S.W.2d 304; McAlinden v. Nelson, 121 Cal.App.2d 136, 262 P.2d 627; Cotter v. Figaro (La.App.), 36 So.2d 291; Keeney-Toelle Real Estate Co. v. Hillinghorst (Mo.App.), 319 S.W.2d 675; and Grieb Erickson, Inc., v. Estberg, 186 Wis. 174, 202 N.W. 331. See, also, annotation, 10 A.L.R. 3d 667 et seq.

The judgment of the Court of Appeals is reversed, and the judgment of the Municipal Court is affirmed.

Judgment reversed.

TAFT, C.J., MATTHIAS, HERBERT, SCHNEIDER and BROWN, JJ., concur.

DUFFY, J., concurs in the syllabus but dissents from the judgment based on the facts of the case.

DUFFY, J., of the Tenth Appellate District, sitting for O'NEILL, J.