Hornback v. Sabin Robbins Paper Co.

MILLS, J.

“At the trial, on Jan. 13, 1927, before any other material evidence had been heard, the testimony of one of the plaintiffs developed the fact that the contract sued on was wholly verbal. Thereupon the court, at the request of the defendant, directed the jury to return a verdict for the defendant. . Plaintiffs ask that the judgment below be reversed, and that a new trial be granted.

Since the enactment, effective July 9, 1925, of the amendment to Section 8621 of the Ohio General Code that brings within the statute of frauds “an agreement, promise or contract to pay any commission for or upon the sale of an interest in real estate,” our Supreme Court," in the case of Brenner v. Spiegle, 116 OS. 583 ( 157 N. E. 491 ) has held a petition to be de-murrable which set forth facts essentially similar to those set forth in the case now before us.

Plaintiffs here contend that their amended petition does not come within the ruling of Brenner v. Spiegle, because they have set out facts showing that plaintiffs accepted the offer of defendant prior to the effective date of the statute in question, since they have averred the plaintiffs “on the 10th day . of Dec., 1924, found a purchaser for said property, exhibited said property to said purchaser, with the knowledge and consent of the defendant, and notified defendant of said facts.” However, that averment in the amended petition, as the accompanying allegations show, clearly means that on Dec. 10, 1924, the plaintiffs merely found a person who later became a purchaser.”

The case of The J. A. Wigmore Co. v. Chapman, 113 OS. 682 , is our authority for holding that “to find a purchaser” means “to find a person ready, wijling and able at the time to take the property at the price and upon the terms stipulated.” The amended petition clearly shows that palintiffs did not comply with these requirements until some date after Dec. 10, 1924; and the amended petition fails to say whether that date was earlier or later than July 9, 1925.

On the authority of the two Supreme Court cases already cited, we hold that the amended petition did not state ec cause of action on express contract.

Plaintiffs contend, however, that if the amended petition is not good as an action on the express contract, it nevertheless states a good cause of action for recovery quantum meruit. With this contention we do not agree. Without deciding, at this time, that a person engaged in the real estate brokerage business could never escape the provisions of the amendment by suing for a quantum meruit under an implied contract, we hold that the added averment in the amended petition to the effect that “the services so performed by plaintiffs were worth said commission” doese not convert this action into one for quantum meruit on an implied contract.

The judgment of the Court of Common Pleas will be affirmed.”

(Hamilton, P. J. and Cushing, J., concur.)