
    George I. Cramer, Inc., v. Patterson.
    
      Brokers — Commission for sale of real estate — Action barred unless agreement in writing — Section 8621, General Code (111 O. L., 10k) — Parol agreement made before, and sale, effected after, statute amended — Statute relates to remedy and retroactive — Not unconstitutional as ex post facto or impairing contract obligations — Constitutional law— Section 10, Article 1, U. S. Constitution.
    
    1. Verbal arrangement whereby broker agreed to procure purchaser for defendant’s property in consideration of percentage of purchase price held merely offer which can be accepted by broker only by securing purchaser at seller’s price, and conferred no definite right on broker until he had procured purchaser.
    2. Section 8621, General Code, as amended by Act April 9, 1925 (111 O. L., 104), providing that no action should be brought to charge defendant on agreement to pay commission for sale of realty unless agreement is in writing, promulgated rule of evidence relating to remedy only, applicable to all actions brought after its passage and retroactive affecting contracts existing prior to its enactment.
    
      S. Statute which abolishes or modifies remedy is not in conflict with Article I, Section 10, U. S. Constitution, prohibiting states from passing any ex post facto law or law impairing obligation of contracts.
    4. Section 8621, General Code, as amended by Act April 9, 1925 (111 O. L., 104), providing that no action shall be brought to charge defendant on agreement to pay commission for sale of realty unless in writing, applying to oral agreements by brokers made prior thereto but not consummated by sale of property, held not to violate Article I, Section 10, U. S. Constitution, prohibiting state from passing ex post facto law or law impairing obligation of contracts.
    5. Broker orally agreeing to sell property for owner held not to have pending or existing cause of action for commissions under General Code, Section 26, prior to sale of land, and hence Section 8621, as amended by Act April 9, 1925 (111 O. L., 104), precluding action on agreement unless in writing, passed prior to such sale, did not affect broker’s right in violation of Article I, Section 10, U. S. Constitution, prohibiting state from passing law impairing obligation of contracts.
    6. Where broker orally agreed to sell lands for commissions, Section 8621, General Code, as amended by Act April 9, 1925 (111 O. L., 104), providing that no action shall be brought on such agreement unless in writing, passed prior to sale of land by broker, held applicable and bar to action for commissions.
    (Decided June 28, 1926.)
    Error: Court of Appeals for Cuyahoga county.
    
      Mr. Frank L. Marvin, for plaintiff in error.
    
      Messrs. Tolies, Hogsett, Qirni $ Morley, for defendant in error.
   Levine, P. J.

The case comes into this court on error proceedings seeking a reversal of the judgment of the municipal court, which sustained a demurrer to the plaintiff’s statement of claim. The, statement of claim filed by the plaintiff below, George I. Cramer, Inc., seeks to recover a commission for the sale of certain real estate owned by the defendant below, Proctor Patterson, and it alleges that on or about the 24th day of September, 1924, plaintiff entered into a contract not in writing, by the terms of which plaintiff undertook to procure for defendant a purchaser for the property of defendant, ready, willing, and able to purchase and pay for the same the sum of $20,000, in consideration whereof defendant was to pay plaintiff the usual and customary commission of 5 per cent, of the purchase price. Various attempts were made by the plaintiff company to find a purchaser ready, willing, and able to purchase the property on the terms above stated. Plaintiff company finally succeeded in procuring such purchaser, to wit, a woman by the name of Blanche Sebly, to whom the property was later deeded for the consideration of $20,-000. The negotiations and subsequent sale of the property took place the latter part of 1925 and the fore part of 1926. The defendant below filed a demurrer to the amended statement of claim, on the ground that said action was brought upon a contract not in writing, and that the alleged agreement was one of those mentioned in Section 8621, G-eneral Code, as amended (111 O. L., 104), and that therefore said amended statement of claim did not state facts sufficient in law to constitute a cause of action. Said demurrer was sustained by the court. The reversal of said decision is now sought.

Section 8621, as amended (111 O. L., 104), reads as follows:

“No action shall be brought whereby to charge the defendant, # * * upon an agreement, promise or contract to pay any commission for or upon the sale of an interest in real estate; * * * unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.”

This section as amended was passed by the Legislature March 27, 1925, approved April- 9, 1925, filed in the office of the secretary of state, Columbus, Ohio, on April 10, 1925, and became effective 90 days thereafter, to wit, July 9, 1925.

Counsel for plaintiff in error maintains that this oral contract set forth, in the statement of claim might properly be termed an executory contract, and that it is therefore a contract to all intents and purposes. He points out that Article I, Section 10, of the federal Constitution, provides that no state shall pass any ex post facto law or law impairing the obligation of contracts. He also quotes Elliott on Contracts, and gives various citations, to wit:

“The prohibition of the Constitution against laws impairing the obligation of contracts applies to all contracts, executed and executory, whoever may be parties to them. This clause of the Constitution is more generally invoked to protect executory contracts.” Elliott on Contracts, Vol. 3, p. 2729; Stephens v. So. Pac. Co., 109 Cal., 86, 41 P., 783, 29 L. R. A., 751, 50 Am. St. Rep., 17; MacMurray v. Sidwell, 155 Ind., 560, 58 N. E., 722, 80 Am. St. Rep., 255.

It is urged, therefore, in behalf of the' plaintiff, that to give amended Section 8621, General Code, the construction sought for it by defendant’s counsel, so as to include the contract in question, would be to invalidate the entire section, because the Legislature has no power to pass any ex post facto law impairing the validity of contracts, whether executory or otherwise.

The first point we are called upon to consider is whether or not the oral arrangement alleged to have been entered into between the plaintiff and the defendant, on or about the 24th day of September, 1924, as alleged in the statement of claim, can properly be construed as a binding contract fixing definite obligations and benefits to be had under the same.

We agree with the contention of the defendant that this verbal arrangement is a unilateral contract, which in law amounts merely to an offer which can be accepted by the real estate broker only by performing all the terms of the offer, to-wit, by securing a purchaser at the price named by the seller. This verbal arrangement did not confer any definite right upon the plaintiff, the agent, until the agent had fully performed his part, and no right of action in his favor accrued until such performance on the part of the agent was fully completed. The agent’s right to bring an action is dependent upon the full completion of his. side of the arrangement, to wit, the procuring of a purchaser able, ready, and willing to buy the property on the terms stipulated by the owner.

Assuming for the sake of argument that there was an existing contract between the parties prior to the passage of the aforesaid amendment, we are of the opinion that since the amendment relates not to the right secured under the contract, but affects the remedy only, it may be properly held that the statute is retroactive in its effect, notwithstanding the assertion that there was an existing contract between the parties. The Legislature by amendment merely promulgated a rule of evidence which shall be held applicable to all causes of action brought into court after the passage of the amendment. Since rules of evidence are incident to the remedy only, a statute which abolishes or modifies the remedy is therefore hot in conflict with the aforesaid constitutional guaranty.

The following quotation states the law on the subject:

“In most jurisdictions the statute of frauds is held to relate to the remedy only and not to affect the validity of an oral contract within its terms. Such a contract, if otherwise valid, remains so, and the sole effect of the statute is to render it unenforceable by one party against the will of the other who abandons or repudiates it; in this sense, such contracts are voidable but not void. No distinction in this respect is usually made between statutes which, in effect, provide that ‘no action shall be brought,’ upon an oral contract, and statutes which provide that such contracts shall not •be allowed to be good,’ or shall be ‘void,’ although some cases do make such a distinction.” 27 Corpus Juris, 309.

Baker v. Herndon, 17 Ga., 568, provides as follows:

“That construction of the fourth section of the statute of frauds, which requires that in every agreement to answer for the debt, default or miscarriages of another, the consideration must appear in writing, having been adopted by the English courts subsequent to the 14th of May, 1776; it is doubtful if the same has been ever settled or sanctioned as the law of our state. Such being the case, our Act of January 19, 1852 [Acts 1851-52, p. 243], declaring what shall be the proper construction of this section, is decisive thereof, and applies to an agreement, made before the passage of the act.”

In the case of Kingley v. Cousins, 47 Me., 91, a Maine statute which provides that “no action shall be brought and maintained upon a special contract, or promise to pay a debt from which the debtor has been discharged by proceedings under the bankrupt laws of the United States, or the assignment laws of this state, unless such contract or promise be made or contained in some writing signed by the party chargeable thereby,” was held to reach those cases the suits of which were instituted after the passage of the law based upon a verbal promise made before its passage.

The amendment provides that no action shall be brought unless the contract is in writing; and it therefore comes within the established rule above given. Plaintiff in this case is not denied his right of action, for if the statute of frauds were not raised and pleaded by the defendant his right to object on that ground would be waived. The constitutional guaranty aims to protect vested rights. The plaintiff’s right did not become fixed so as to enable him to bring an action until the sale was consummated, and not until several months after amended Section 8621, General Code, became effective. Section 26, General Code, is pertinent to our discussion. It reads as follows:

“Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affeci pending actions * * * and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

The aim and purpose of the above section is to help in the construction of amended sections and their applicability to certain cases. It cannot be contended that at the time the said amendment became effective, the plaintiff either had a pending cause of action or an existing cause of action. The plaintiff had no right against defendant until he had consummated a sale. It was only then that such right came into existence.

It seems to us that the alleged conflict with the provision of the federal Constitution relating to existing contracts does not exist. It is purely a question of the applicability of the amended law— that is, whether or not it applies to a situation such as is set forth in the plaintiff’s statement of claim.

For the reasons above given we conclude that since the plaintiff had neither a pending action nor existing cause of action at the time the amended law became effective, the full force and effect of the amended law, relating as it does to the plaintiff’s remedy, must be held applicable to the case at bar.

The action of the trial court in sustaining the demurrer was right, and its judgment is therefore affirmed.

Judgment affirmed.

Sullivan and Vickery, JJ., concur.  