Opinion
No. 7748
Decided October 26, 1953.
Real estate brokers — Earnest money received by broker — Received in fiduciary capacity and must be returned, when — Broker entitled to commission, when — Appeal — Final appealable orders — Journalized judgment — On motion for instructed verdict — On motion for judgment non obstante veredicto — On motion for new trial — Erroneous judgment on motion for directed verdict — Right to reversal and final judgment by appellate court — Trial court's ruling on new trial motion — Appellate court need not pass upon, when.
1. Money received from a prospective purchaser by a real estate broker as a deposit on a contract of sale, on the express condition that if the transaction is not completed the deposit will be returned, is received by the broker in a fiduciary capacity, and upon demand therefor by the purchaser must be returned to the purchaser by the broker, especially so when he has been ordered so to do by the sellers. ( Phillip Metropolitan M. E. Church v. Wahn-Evans Co., 153 Ohio St. 335.)
2. Where a real estate agent or broker makes a contract with the owner of property to find a buyer for his real estate for a certain commission 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. ( Carey, Admr., v. Conn, 107 Ohio St. 113.)
3. Adverse action by a trial court upon a motion for an instructed verdict filed by a defendant at the close of the evidence, and directly or inferentially incorporated in a final judgment in favor of the plaintiff, constitutes a final order from which an appeal may be taken after action of the trial court upon a motion for a new trial is duly filed. ( Hurt v. Charles J. Rogers Transportation Co., 160 Ohio St. 70. )
4. Separate appeals may be taken from a final judgment incorporating action of the trial court upon a motion for instructed verdict, action of the trial court upon a motion for judgment non obstante veredicto, and action by the trial court upon a motion for new trial, all of which are final appealable orders. ( Hurt v. Charles J. Rogers Transportation Co., 160 Ohio St. 70; Schenley v. Kauth, 160 Ohio St. 109.,
5. Where it appears that no substantial evidence has been introduced by a codefendant against a cross-petition by another defendant, it is the duty of the trial court to enter judgment in favor of such codefendant, and where a motion for an instructed verdict has been filed at the close of the evidence, the Court of Appeals, upon appeal from the final judgment entered in the action, adverse to the movant, will enter final judgment in favor of such movant.
6. Although a defendant has filed a motion for instructed verdict, motion for judgment non obstante veredicto and a motion for a new trial, he is entitled to have considered on an appeal duly perfected his right to final judgment upon such motion for an instructed verdict. ( Michigan-Ohio-Indiana Coal Assn. v. Nigh, Admx., 131 Ohio St. 405; Hurt v. Charles J. Rogers Transportation Co., 160 Ohio St. 70, 74.)
7. Where the Court of Appeals upon consideration of an appeal from the refusal of the trial court to instruct a verdict, upon motion duly filed therefor, finds that such verdict should have been so instructed and judgment entered accordingly, and the Court of Appeals enters the judgment which the trial court should have rendered in favor of the movant, it becomes unnecessary for the Court of Appeals to pass upon an appeal from adverse action by the trial court on a motion for new trial. filed by such movant. ( Hurt v. Charles J. Rogers Transportation Co., 160 Ohio St. 70, 76.)
APPEAL: Court of Appeals for Hamilton County.
Mr. Charles H. Tobias, Jr., and Messrs. Steer, Strauss Adair, for plaintiff-appellee.
Mr. Ewing O. Cossaboom and Messrs. Dickerson, Hermerding Ahrens, for appellant.
Mr. Frank J. Longano, for defendants-appellees.
The parties herein involved are (1) Henry W. Lamb, plaintiff-appellee, a contractual purchaser of certain real estate, (2) Gilbert R. Dutro, defendant-appellant, a real estate broker, who was instrumental in securing a contract of sale between his principal, the seller, and the plaintiff-appellee, the purchaser, (3) Albert and Eleanor Bearman, defendants-appellees, the sellers, and (4) the American State Insurance Company, defendant-appellee and bonding company for the agent Dutro, which company was dismissed from the action, and which is not involved in the appeal here considered.
From the various pleadings filed and the evidence it appears that the purchaser sued to recover a down payment given to the agent. This money was held by the broker in a fiduciary capacity, and upon direction of the sellers should have been returned by the broker to the purchaser upon his demand therefor. Phillip Metropolitan M. E. Church v. Wahn-Evans Co., 153 Ohio St. 335, 91 N.E.2d 686, 17 A. L. R. (2d), 1007. The judgment of the trial court was in accordance with such law, and the judgment in that respect is affirmed.
The broker, by a cross-petition, sought to recover his commission covered by a written contract with the sellers, claiming that he had performed such contract in securing a contractual purchaser for the real estate involved. The trial court rendered judgment in favor of the sellers and against the broker on this claim. The broker filed a motion for an instructed verdict at the close of the evidence and for judgment notwithstanding the verdict against him.
A motion for a new trial was filed by the broker, which was overruled, and from which the appeal on questions of law here considered was taken.
The broker has appealed also from the judgment against him. That judgment, in effect, journalized the adverse action of the court on the broker's motion for an instructed verdict. There is no appeal by the broker from the adverse action of the court on the motion for judgment non obstante veredicto.
By the appeal from the judgment and motion for new trial, these questions are presented to this court: (1) Was the broker entitled to judgment as a matter of law on the petition of the plaintiff? The answer to this question is "no," for the reasons heretofore given. (2) Is the broker entitled to a new trial upon the petition of the plaintiff? The answer to this question is also in the negative, for the reasons heretofore given. (3) Was the broker entitled to judgment as a matter of law on his cross-petition against the sellers? And (4) was the broker entitled to a new trial on his motion therefor against the sellers?
An examination of the record leaves no doubt that there is no substantial evidence upon which reasonable minds could disagree, showing that the broker is not entitled to his commission under his contract with the seller. He produced a buyer who contracted to purchase the real estate, and the seller, by signing the contract of sale, accepted the buyer as financially responsible to carry out his contract. This gave the broker a right to his commission, the amount of which is not in dispute. Carey, Admr., v. Conn, 107 Ohio St. 113, 140 N.E. 643. No valid defense against this right was sustained by any substantial evidence.
Reasonable minds could not disagree upon the inferences to be drawn from the evidence or lack thereof.
The broker was entitled to an instructed verdict in his favor, and the adverse action of the court constituting a final order ( Hurt v. Charles J. Rogers Transportation Co., 160 Ohio St. 70, 113 N.E.2d 489) having been journalized in the final judgment, from which an appeal was taken by the broker, gives this court the right, on appeal, to render the judgment which the trial court should have rendered in favor of the broker on his motion for an instructed verdict. The fact that the movant has also filed a motion for new trial does not deprive such movant of the right to have the Court of Appeals grant him final judgment on his appeal from action of the trial court on his motion for an instructed verdict if he is entitled thereto. Michigan-Ohio-Indiana Coal Assn. v. Nigh, Admx., 131 Ohio St. 405, 3 N.E.2d 355; Hurt v. Charles J. Rogers Transportation Co., supra, at page 74.
The third question raised by the motion of the broker for new trial requires no consideration. Hurt v. Charles J. Rogers Transportation Co., supra, at page 76. If such consideration were required by the appeal duly filed herein, a new trial would be ordered by the court on the broker's cross-petition against the sellers.
Such being the case, the judgment of the trial court is affirmed as to the appeal upon the petition of the plaintiff, and final judgment rendered in favor of the broker against the sellers upon his cross-petition against them.
Judgment accordingly.
MATTHEWS, P. J., and HILDEBRANT, J., concur.