
    No. 907.
    TABLER v. OHIO STATE MORTGAGE CO.
    Ohio Appeals, 8th District, Cuyahoga County
    No. 4633.
    Decided Nov. 12, 1923
    107. CONTRACTS.
    Judgments accepting one of two conflicting theories of contract, not against weight of evidence, will not he reviewed.
    387. WORDS.
    “Unliquidated” claims as applied to services rendered defined.
    67. BROKERS.
    Real estate commission is unliquidated claim until custom to pay certain percentage is proved.
    Attorneys — D. • M. Baker, for Tabler;. B.. C. Boer and Bartholomew, Leeper & McGill, ¡.for Mortgage Co., all of Cleveland.
   SAYRE, J.

„ . , „ . . Epitomized Opinion

Action by Tabler to recover as his commission 4% of the sale price of property sold by Tabler for the Co. The Co. contended that Tabler was to have 4% if he sold the property for $16,000. The property was in fact sold for $15,750. The Co. sent Tabler a- cheek for $510 on which was written— “settlement in full for all commission,” and there was a receipt on the back of the check. Tabler cashed the check, but erased the receipt and this suit is to recover a claimed balance of $120. At the trial in the Cleveland Municipal Court, both Tabler and thé Co. offered evidence in support of their theories of the contract. The trial court found that the contract pleaded by the Co. was true and rendered judgment for it. In affirming the judgment the Court of Appeals held:

1. The court is bound by the finding of the trial court, since that finding is not manifestly against the weight of the evidence. The case must therefor be decided on the Co.’s theory of the contract.

2. A claim is unliquidated when it has not been ascertained or settled by agreement of the parties or fixed by operation of law. When a party has a claim for services and he is entitled to recover what his services are reasonably worth, the amount is unliquidated.

3. It may be that it is customary in Cleveland and vicinity to pay i% commission on sales of real estate where no specific amount is fixed by the contract, but it is necessary to offer ■ .evidence in the case, and establish that fact before a • party suing under such circumstances can recover.  