
    Voelger v. The Frederick A. Schmidt Co.
    (Decided April 1, 1935.)
    
      Mr. Stanley A. Silversteen, for plaintiff in error.
    
      Mr. Jerome Goldman, Mr. William S. Schwarts and Mr. John L. Sanger, for defendant in error.
   Ross, P. J.

This case comes into this court on error to the Court of Common Pleas of Hamilton county, Ohio, which court reversed a judgment of the Municipal Court of Cincinnati in favor of the defendant upon his cross-petition.

The parties are designated herein as they appeared in the trial court.

The plaintiff in the Municipal Court, The Frederick A. Schmidt Company, defendant in error here, sued the defendant, Philip H. Voelger, to recover the balance of a real estate commission and advertising charges, which the Schmidt Company alleged it had earned and expended in conformity to the terms of a written contract in existence between the parties to the suit.

This contract provided that the plaintiff should sell the real estate of the defendant at public auction. The defendant was not obligated for any commission for such sale at auction, unless the property sold for $11,000 or more. The defendant was bound to pay the actual expense of advertising. The contract reads: “I hereby authorize you to spend the sum not to exceed sixty-five ($65.00) Dollars for the purpose of advertising this auction by means of newspaper advertising, circulars, etc., or in any other manner which you may deem advisable, which amount I hereby agree to pay to you whether a sale is effected or not. ’ ’

There is no question that the amount expended for advertising is a just indebtedness in any view of the case.

Upon the day of sale it was impossible to get a bid of $11,000, the best offer being $10,025. Such being the case, a conference was held upon the grounds, and the defendant agreed to sell at the price offered, upon which agreement a contract of sale was drawn up, and a down payment of $200 turned over to the agent for plaintiff, who conducted the auction. The property was not formally declared by the auctioneer to have been sold. A deed was later made by the defendant to the purchaser. The contract further provided that if a private sale was made of the property within 30 days before, or 30 days after, the auction, the plaintiff was to receive its commission. There was no limitation as to price at private sale. The defendant not having paid the balance of the commission plaintiff sued to recover same, plus the expense of advertising, crediting on account the $200 deposit, which it had retained. The defendant denied that any commission was due, and cross-petitioned to recover the amount of the deposit, deducting advertising expense, which he stated to be only $18.72. He also alleged he was coerced into accepting $10,025 for the property, the plaintiff’s employee having threatened to institute foreclosure proceedings upon his home if such offer were not accepted.

Upon the trial of the case the jury found against the plaintiff on its petition and for the defendant upon his cross-petition, and judgment was rendered in favor of defendant for $181.18, being the amount claimed to be due him after deducting the advertising cost of $18.72 from the $200 deposit. An apparent error in subtraction was made by the defendant.

On error to the Court of Common Pleas of Hamilton county, the judgment was reversed for error in the charge of the court, and the cause was remanded to the Municipal Court for a new trial.

, The plaintiff was entitled to its compensation if the property was sold at auction for $11,000 — or if sold at private sale. Obviously the limitation as to the auction price could be waived.

The defendant testified:

“A. Mr. Farrell said, ‘We can’t wait any longer, either. You better get rid of it, otherwise we have to take action.’

“Q. He would take action?

“A. Yes.

“Q. On what?

“A. Well, they were the representatives of the Metropolitan Life, who had a mortgage on my home in Lafayette Circle.

“Q. Another piece of property?

“A. Yes, my residence.

“Q. They said they would have to foreclose on the property at Lafayette Circle?

“Mr,. Schwartz: I object to his leading the witness.

“The Court: Don’t lead the witness.

“Q. I will try not to lead him. G-o on with your story, Mr. Voelger.

“A. My wife and I talked things over between ourselves and Mrs. Voelger said, ‘After all, we are going to have a lot of trouble; let it' go ’; and then I consented to let it go.”

It seems to us immaterial whether the action of the defendant be considered as a waiver of the upset price of the auction or an acquiescence in a private sale. This is evidence that the commission was earned under the terms of the contract.

The court charged as follows:

“The plaintiff in this case, in fact in any case the party asking for affirmative relief, must prove their right to recover and must prove this right by a preponderance of the evidence; that is to say, they must produce evidence here which out-weighs. If the plaintiff has proved such evidence, and it does preponderate in your mind in favor of the plaintiff, then and in that event the plaintiff is entitled to relief; but if the plaintiff does not prove its case by a preponderance of the evidence or by evidence which out-weighs, and you find this after weighing it with the scales here given, the plaintiff is not entitled to relief — logically, because he has not proven his right to relief. ’ ’

This charge is erroneous, in that it limits the plaintiff to evidence produced by it. .It is entitled to the benefit of all the evidence, whether produced by it or the defendant. It is contended that this was not made an assignment of error before the Court of Common Pleas. A court need not consider error unless presented to it, but it certainly may do so.

It is admitted that the court erroneously charged upon the subject of duress. In any event, the plaintiff only stated it would do what it had a right to do.

In our view of the cáse, the verdict was against the weight of the evidence, and the court committed error in its charge.

The judgment of the Common Pleas Court was correct and the same is affirmed.

Judgment affirmed.

Matthews and Hamilton, JJ., concur.  