
    Cohen v. The P. J. Spitz Co.
    (Decided November 12, 1928.)
    
      Mr. Ho seo e M. Ewing, for plaintiff in error.
    
      Messrs. Mooney, Hahn, Loeser & Keough, for defendant in error.
   Sullivan, P. J.

This cause is here on error proceedings from the common pleas court of Cuyahoga county, and it is an action by Morris Cohen for the recovery of $2,250, a sum equivalent to one-half of a commission for the sale of real estate received by the P. J. Spitz Company in a brokerage transaction for the sale of certain real estate belonging to the Wayside Improvement Company, and the basis of the right to recover, according to the allegations of the petition, is that on November 16, 1925, the defendant, as agent for the sale of certain lands belonging to the Wayside Improvement Company, contracted with the plaintiff in error that, if he found a purchaser for the real estate, he would receive one-half of the total commission of $4,500 payable to the P. J. Spitz Company by the Wayside Improvement Company.

The defendant answered by alleging that, if there was any such agreement as alleged in the petition, it was not in writing, and that there was no memorandum or note thereof, signed by defendant or any other person thereunto by it lawfully authorized.

The briefs are built upon the theory that the determination of the question whether the court below committed error by granting a motion for judgment for the defendant upon the pleadings depends upon the construction of the amendment to the statute of frauds, known as Section 8621, General Code, which in substance provides that no action shall be brought to. charge the defendant upon a contract for sale of lands, tenements, or hereditaments, or any interest therein, or concerning same, nor upon an agreement, promise, or contract to pay any commission for or upon the sale of an interest in real estate, unless there is an agreement in writing, or a memorandum or note thereof, signed by the defendant, or some other person thereunto lawfully authorized in the premises.

Thus the real question is whether a recovery can be had in the case at bar, under the state of the pleadings, where the contract sued upon was not in writing in conformity with the provisions of the statute of frauds, as amended March 27, 1925 (111 Ohio Laws, 104).

As authority for the claim that the case at bar is not within the statute of frauds, plaintiff cites the case of Furth v. Farkasch, 26 Ohio App., 258, 159 N. E., 142, which holds that Section 8621, General Code, does not apply to the particular class of contracts which is the subject of controversy there.

Another authority, to wit, Wade v. DeHart, 26 Ohio N. P. (N. S.), 560, is cited to us to support the contention that the statute of frauds does not apply in the instant case, because the agreement in the Wade case, supra, created a partnership for the purpose of improving or selling real estate, and did not contemplate the transfer of title. As far as the question of partnership is concerned, we do not think there is any foundation for the claim made in the able brief of counsel for plaintiff in error that the allegations of the petition constitute a partnership, or, in the language used by the court in its opinion in the Furth case, supra, “were equivalent to a sort óf a partnership. ” It is our judgment with respect to this point that the failure of material allegations in the petition prevents a recovery upon a partnership.

Upon a close scrutiny of the allegations of. the petition, we find that the statute of frauds applies to the present case, because the most reasonable construction which can be given the language of the allegations is that the defendant at the time of the transaction was the agent for the sale of a certain parcel of land belonging to the Wayside Improvement Company, and as such agent entered into the contract sued upon in the instant case, for which a recovery is sought even though the contract is not in writing.

From the character of the allegations, the agent, acting for the principal, the Wayside Improvement Company, was entering into an oral contract for and in behalf of the principal, who could only be bound to pay a commission providing the contract was in writing, under the provisions of the statute of frauds as amended.

In these respects the instant case is distinguished from Furth v. Farkasch, 26 Ohio App., 258, 159 N. E., 142, and from Wade v. De Hart, 26 Ohio N. P. (N. S.), 560, because it is clear from the wording of the petition that the agent for the sale of the property could not enter into a contract for the sale thereof without complying with the provisions of Section 8621, General Code. The same reasons that apply to the principal are applicable to the agent for the sale of the property, and the latter would have no more right to make a contract, contrary to the amended provisions of the statute of frauds, than the principal, and neither would have any right at all, under the provisions of that law. So it is not necessary to pass upon the question raised by the able and exhaustive brief of counsel for defendant in error, who, by his reference to and analysis of the authorities mentioned in his brief, seeks to have che instant case distinguished from Furth, supra, and Wade, supra.

From our construction and interpretation of the allegations of the petition, as herein outlined, there is no occasion to use these authorities, and we base our decisions upon the allegations of the petition itself, which in our judgment make it unmistakably manifest that, in order to recover thereunder, the contract must comply with the amended provisions of the statute of frauds.

Holding these views, the judgment of the lower court is hereby affirmed.

Judgment affirmed.

Viokery and Levine, JJ., concur.  