
    Common Pleas Court of Montgomery County.
    Farrell v. Spangler et al.
    Decided April 5, 1932.
    
      Jos. W. Sharts, for plaintiff.
    
      Thomas, Hyers & Leyland, for defendants.
   Cecil, J.

The plaintiff in this case filed a petition to recover from the defendants the sum of nine hundred and fifty dollars, as a commission for the sale of certain real estate owned by the defendants upon an oral contract between the parties hereto.

The plaintiff alleges in his petition that he entered into an oral contract with the defendants on or about the seventh day of November, 1929, by which contract he was to use his endeavors to find a purchaser for the property in question, and to receive therefor from the defendants in case he was successful in arranging such sale the regular and usual brokerage commission to-wit: four per cent, on the first twenty thousand dollars and three per cent, above that amount.

The petition further alleges that the plaintiff interested the Standard Oil Company of Ohio, a corporation, in said property and that after various negotiations between that company and the defendants, the defendants, themselves, sold the property to the Standard Oil Company of Ohio, on or about August 14, 1931, for the sum of twenty-five thousand dollars.

The case is now before the court upon a demurrer of the defendants to the plaintiff’s petition, for the reason that the contract between the plaintiff and defendants was not in writing, as required by Section 8621 of the General Code of Ohio, commonly known as the Statute of Frauds.

Section 8621 of the General Code of Ohio was amended in 1925 to read, so far as applicable to this case 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, became effective July 9, 1925. It was amended again in 1931 by taking out of the statute the provision above quoted with reference to real estate contracts. This amendment became effective July 27, 1931.

The transaction in question here was only a unilateral contract, until the plaintiff had actually secured a purchaser for the real estate in question. In other words, the agreement between the parties hereto was merely an offer on the part of the defendants, which could be accepted by the plaintiff only by securing a purchaser at the defendant’s price.

The contract was not consummated therefore, until the Standard Oil Company of Ohio agreed to purchase the property which was on or about August 14, 1931. At this time, plaintiff’s alleged cause of action accrued. The statute of frauds, as then in effect, did not require contracts for the payment of a commission for the sale of real estate to be in writing, and the plaintiff may state a cause of action by alleging that the contract in question was an oral one.

After the first amendment, above quoted, became effective, it was held that similar contracts where the agreement to pay a commission for the sale of land was made before the amendment became effective, and the sale consummated after this amendment became effective, the statute as amended, applied, and real estate agents under such circumstances could not recover. Brenner et al. v. Spiegel, 116 O. S., 631; Burnstine v. Resler, 29 O. App., 253; Hornback et al. v. Sabin Robbins Paper Company, 27 O. App., 329; Cramer, Inc., v. Patterson, 25 O. App., 130.

The demurrer will be overruled.  