
    No. 360
    MOSER v. SIMMONS
    No. 18905
    Supreme Court
    On motion to direct Knox Appeals to certify, the record. Dock.
    Jan. 14, 1925,
    3 Abs. 34.
    257. COMMISSIONS—Must entire first payment of purchase price be first paid in, to make them accrue?
    Attorneys—Burch B. Ferenbaugh, Buckeye City, for Moser; Columbus EWalt and Barton W. Blair, Mt. Vernon, for Simmons.
   In the Knox Common Pleas, Moser sought to recover as part of damages for a breach of contract, $300, held by C. E. Simmons as a part of the down payment on the purchase price of a farm. It seems that C. H. Schindler was the proposed purchaser of the farm and under the terms of the contract, the $300 was to be applied as damages in case the contract was not fulfilled. Simmons was alleged to have this sum, by consent of the parties, in accordance with the agreement.

Simmons claimed he acted as agent in this transaction for one Masters, that said agency was known to Moser, and that the $300 was paid to him as such agent. He also claimed that Moser and Masters entered into a contract of employment wherein Masters was to procure a purchaser for the farm; Moser agreed to pay 5% of the purchase price of said farm to Masters as commission; that the $300 was paid to him as agent for Masters, to be applied to the payment of the commission. Simmon declared that he requested Moser to bring an action in specific performance against Schindler, but this Moser refused to do.

Moser claimed that under the contract the commissions were to be paid out of the first cash payment, at the sale and not the contract of sale. The cash payment was intended by the parties as being $3000 as expressed in the contract; and since it was never paid the commission was nqt due Masters. The Common Pleas rendered judgment in favor of Simmons; and the judgment was affirmed by the Court of Appeals.

The question before the Supreme Court is:

Did the lower courts construe the contracts contrary to the intention of the parties?  