
    KANTER v SEBEL AND KERLEY
    Ohio Appeals, 1st Dist, Hamilton Co
    No 4075.
    Decided May 3, 1932
    Sol Goodman, for plaintiff in error.
    Lester G. Hilpp, Cincinnati, for defendant in error.
   ROSS, PJ.

The evidence showed that plaintiffs and defendant had been engaged in several real estate transactions, in which the plaintiffs had acted as real estate brokers or agents, and rendered services to defendant.

The contract provided that the $500 in controversy was to be “derived from the net prorations received on the Vine Street property.” While the trial court excluded evidence which was material to this phase of the case there is enough in the record to show that this transaction was fruitless of profit, owing to the fact that the buyer refused to perform.- The defendant having-made a voluntary payment based upon a past consideration cannot recover same. There being nothing received from the Vine Street property out of which “net pro-rations’” can be made, the plaintiffs can not recover anything against the defendant.

The judgments of the Municipal Court of Cincinnati and the Common Pleas Court were, therefore, erroneous in sustaining the claim of the plaintiffs for $250, and to such extent are reversed.

There being no dispute between the parties as to the essential facts necessary to a determination of the issues presented by the pleadings, judgment is rendered in favor of the defendant upon the bill of particulars of the plaintiffs, and the judgment of the Court of Common Pleas is affirmed as to the cross-bill of particulars of the defendant.

PIAMILTON and CUSHING, JJ, concur.  