
    No. 437
    SCHCROEDER v. LAND REALTY CO.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 975.
    Decided March 11, 1925
    997. REAL ESTATE—When broker is given authority to sell by owner, who tries to prevent sale by his own act; the broker is entitled to commissions'.
    651. INTEREST AND USURY—Instructing jury to. allow interest when none prayed for. in petition held erroneous and remittitur thereof ordered. ■
   FUNK, J.

This action was commenced in the Summit common pleas by Arthur Land and E. O. Gas-kill, d. b. a. the Land Realty Co. Edward Schroeder was the other party. It was claiméd by the Land Realty Co, that Schroeder had listed with it property which, if sold for a certain amount, ($36,000) would guarantee it $1,000 commission. The . company sold, the property and tendered $500 down payment to Schroeder asking that a deed be executed' to the prospective purchaser. This Schroeder refused' to do, because he claimed his sister owned ,an undivided half in the property and she.,would not-, sign; and did not care to .sell. Schroeder also claimed that he contracted with the company to pay the $1,000 commission if one-half the price of the property ($18,000) was paid for. The company declared that the prospective purchasers had the cash to pay but desired the execution of the deed first. . The common pleas rendered a judgment for $1000 plus $300 interest, in favor of the company. The Court of Appeals held:

Attorneys—Musser, Kimber & Huffman, for Schroeder; Lee J. Myers, for Company; all of Akron.

1. The Land Realty Co did all it was required to do and it was not the fault of the company nor the prospective buyers, but the fault of Schroeder that the sale was not consummated.

2. The broker is entitled to recover his commission when a bona fide offer from a prospective purchaser is received and the sale is prevented entirely by the owner. 82 OS. 1 at pp. 12-13.

3. Since nb interest was prayed for in the petition the court erred in instructing the jury to add interest to the amount claimed in the petition.

Judgment will be reversed unless company desires to remit $300 from judgment so that it will be in conformity with petition. If re-mittitur is entered judgment will b^e affirmed.  