Opinion
Decided November 23, 1931.
Brokers — Commission for sale of realty — Statute of frauds inapplicable — Section 8621, General Code — Vendor signed commission contract before sale closed with purchaser — Commission recoverable on sale price paid at trial, without supplemental petition.
1. Vendor signing contract for broker's commission before coming to terms with purchaser could not plead statute of frauds to broker's action for commission (Section 8621, General Code).
2. Awarding broker commission on amount vendor admittedly received after action for commission was instituted held not prejudicial, although broker failed to file supplemental petition; vendor having admitted receipt of money at trial.
ERROR: Court of Appeals for Hamilton county.
Mr. Mitchell Wilby, for plaintiff in error.
Messrs. Kunkel Kunkel, for defendant in error.
The action was for a real estate commission. Plaintiff in error, Charles E. Boedker, relies largely on the cases of Warner Co. v. Brua, and Wertheim v. Mutschler, 33 Ohio App. 84, 168 N.E. 571, to bring this case within the statute of frauds (Section 8621, General Code).
The contract for the real estate commission in question was signed by Boedker prior to the coming to terms of agreement of sale between Boedker, the seller, and Burckhardt, the purchaser. In other words, no offer and acceptance had been made in the instant case at the time of signing the contract to pay the commission, as was the fact in the Brua case, supra.
Further, there is some evidence tending to show that the agent took Boedker to see the purchaser after the signing of the commission contract, upon which occasion the sale agreement was effected. The case of Warner v. Brua, supra, is therefore not controlling.
Plaintiff in error further complains that if the plaintiff below was entitled to any commission, it was limited to 4 per cent. on $15,000, or $600, as at the time of filing this suit $5,000 was unpaid. At the time of trial, the $5,000 balance had been paid. While the plaintiff to be technical might have filed a supplemental petition in order to avoid any question concerning the sale price, it was admitted at the trial that the $5,000 balance had been paid, so that no prejudice resulted from the failure to file a supplemental petition, if one was needed.
Other claimed errors are not important or prejudicial, and do not require a reversal of the judgment.
Finding no error in the record prejudicial to the plaintiff in error, the judgment of the court of common pleas is affirmed.
Judgment affirmed.
ROSS, P.J., and CUSHING, J., concur.