
    Patton v. Alessi et al.
    (Decided November 25, 1931.)
    
      Mr. Howard Buker, for plaintiff in error.
    
      Mr. John G. Bassett, for defendants in error.
   Montgomery, J.

The plaintiff in error, D. S. Patton, filed his petition in the court of common pleas of Muskingum county against the defendants in error, Biagio Alessi and Leonerda Alessi, and in it he alleged that he was a duly licensed real estate broker; that on February 7, 1930, the defendants, by written contract, engaged him to sell or exchange certain real estate owned by them, consisting of about seventy acres of land in Newton township, Muskingum county; that they authorized him to sell or exchange said property for nine thousand, five hundred dollars, and agreed to pay him five per cent, commission on said sale; and that he was constituted sole and exclusive agent for the sale or exchange of the property for ninety days. Plaintiff alleges that he sold said property to one William A. Lorimer, and that the said Lorimer entered into a written contract for the purchase and sale of the property, but that the defendants refused, and still refuse, to pay said commission. The prayer of the petition was for judgment in the sum of $475.

To that petition the defendants filed an answer in which they admit that the plaintiff is a licensed real estate broker, and deny all the other allegations of the petition. There was set up a second defense, alleging other matters, which need not be considered at this time. Subsequently thereto the defendants filed, by leave, an additional or third defense, in which they alleged that no sufficient memorandum in writing had been signed, in compliance with the requirements of the statute of frauds.

To the second and third defenses, replies were filed, denying the same.

The matter came on for trial before a jury, and the plaintiff, to maintain his claim, took the witness stand. He testified that he had procured the execution of his broker’s agreement, and the execution of the contract with Lorimer, both of which contracts he identified, and both of which are attached to the bill of exceptions as exhibits. He testified that he had not been paid his commission, and that the defendants refuse to pay the same. Thereupon, his counsel offered in evidence the two contracts so appearing as exhibits, and objection being offered to their introduction the court sustained the objection. Thereupon, the plaintiff rested his case, and a motion was made by the defendants for a directed verdict, which motion was sustained, and a verdict was accordingly returned for the defendants. A motion for a new trial having been overruled judgment was rendered upon the verdict, and from that judgment error is prosecuted to this court.

The petition in error sets forth a number of grounds of error, but they all relate to the refusal of the court to permit the introduction of these two exhibits, and the court’s rendition of judgment upon the plaintiff resting his case. So far as the defendant in error Leonerda Alessi is concerned, plaintiff’s Exhibit No. 1, which was the broker’s contract, was not signed by her. The petition does not allege that her husband represented her, or acted as her agent, or had authority from her to sign. So far as she is concerned, the judgment of the court of common pleas was right in any view of the case.

So far as the defendent in error Biagio Alessi is concerned, we hold that plaintiff’s Exhibit No. 1 was a sufficient memorandum in writing to bring the same within the requirements of the statute of frauds. However, the court was right in excluding from the jury the consideration of Exhibit No. 2, which was the contract entered into between Biagio Alessi and William A. Lorimer, and there being no other evidence offered by the plaintiff the judgment of the common pleas court was right in directing a verdict.

We say that the court properly excluded this Exhibit No. 2. This exhibit was before this court in an action wherein Lorimer sought to enforce the specific performance of a contract, and this court held that the contract was so vague and indefinite that it could not be enforced, and not being enforceable as to one of the parties thereto was likewise invalid as to the other; this court holding that that contract lacked “mutuality of obligation and remedy.” To that holding we still adhere, and, as the contract was not enforceable, in our judgment the plaintiff in error did not procure a purchaser, or effect such a contract on the part of the defendant in error Biagio Alessi as to entitle him to any relief in this action. It is not sufficient that plaintiff should have procured a purchaser ready, able and willing to take the property; it was necessary also that he should have procured the execution of an enforceable contract.

The doctrine is laid down in 4 Ruling Case Law, 305, Section 46, as follows: A broker “is entitled to his commission when a binding contract is entered into between his employer and the person produced by him.”

Finding no error in this record prejudicial to the plaintiff in error, it follows that the judgment of the court of common pleas miist be, and the same is hereby, affirmed.

Judgment affirmed.

Sherick, P. J., and Lemert, J., concur.  