
    Radabaugh v. Lantz.
    (Decided April 21, 1930.)
    
      Mr. Harry E. Marble, for plaintiff in error.
    
      Messrs. Gloss <& Gloss, for defendant in error.
   Hamilton, J.

This was an action brought by B. F. Radabaugh against the defendant in error, Earl Harrison Lantz, for the recovery of a real estate commission, earned under a contract of employment, resulting in the sale of the property of the defendant in error.

There is no dispute with reference to the amount of commission claimed, to wit, $812.50, or with reference to the fact that defendant in error here was indebted to plaintiff in error for that amount. The" dispute here is over a claimed set-off upon the part of the defendant in error in the sum of $425.

The trial court found the defendant entitled to a credit of $425, the amount claimed in the set-off, as against the claim of $812.50, and rendered judgment for the difference in favor of the plaintiff. Plaintiff prosecutes error from that judgment, contending that the set-off was improperly allowed.

Briefly, the pertinent facts are that Radabaugh had a six months agency contract with Lantz for the selling of his property; that Radabaugh secured a prospective purchaser, who entered into an optional agreement with Lantz for the purchase of his property, which agreement gave the prospective purchaser a 45-day option, for which the prospective purchaser paid Lantz $1,000; that the optioner did not carry out the contract to purchase, and Lantz became possessed of the $1,000. At the time the option contract was made, Radabaugh insisted that he was entitled to one-half of the $1,000. Lantz testified that, at the time the option contract was entered into, he had a conversation with Mr. Radabaugh with reference to Radabaugh’s receiving a part of the option money in the event it was forfeited, and that Radabaugh claimed that he was entitled to 50 per cent of the option money; that he (Lantz) objected at the time, but stated to Radabaugh, “I will do what’s right and customary;” that he would pay him “what would be coming to him.” He testified that he would be willing to pay him that amount if it was right, and that he did pay him $425 later.

When the optional contract was abandoned, Radabaugh continued under his contract and endeavored to sell Lantz’s property, and, in accordance with the contract, he co-operated with another real estate broker on the basis of dividing the commission for the sale. They succeeded in securing a purchaser, the sale was completed, the deed was executed, and the purchase money paid. Thereupon Lantz paid one-half the commission to the assisting real estate brokers, which amounted to $812.50, and refused to pay Badabaugh his one-half, but offered to pay the one-half, to wit, $812.50, less $425 which he had given Badabaugh as his share of the $1,000 option money.

The trial court took the view that Lantz was entitled to this set-off of $425, apparently on the theory that Badabaugh was not entitled to receive any part of the option money, since it was not in writing, or on the theory that the $425 was an advance payment on the sale commission.

The question of the statute of frauds has no bearing on the proposition. It was an executed transaction.

The payment of the $425 by Lantz to Badabaugh was a voluntary payment under a claim for services in procuring the optional contract. There is no connection between this transaction and the transaction under which the sale was actually made and the commission of $812.50 earned. To entitle Lantz to the set-off, it would necessarily be as for money had and received or payment made under mistake of fact, amounting to legal fraud. There is nothing in the record showing either situation. The fund of $1,000 was procured by Badabaugh bringing in the party who entered into the optional contract, and Lantz received the $1,000 by reason of this service. Badabaugh would not have been entitled to maintain an action under the statute to recover any part of the $1,000. Badabaugh was able to induce Lantz in good conscience that he was entitled to one-half. Lantz testified that, feeling that he wanted to do what was right in the matter, he voluntarily paid $425 to Badabaugh, and this transaction was over.

We are unable to see under what rule of law Lantz would be entitled to maintain an action against Radabaugh to recover money voluntarily paid upon a claim which he did not at the time of payment dispute, although he knew all the facts of the transaction.

We are therefore of the opinion that the court committed error in allowing the set-off as against the claim sued upon in this action, and that the judgment should have been for the full sum of $812.50.

The judgment of the court of common pleas will be set aside and held for naught, and, the facts not being materially in dispute, we will enter the judgment here that the court below ought to have entered.

Judgment will be entered here for the plaintiff in error for the amount of $812.50 and costs.

Judgment reversed and final judgment for plaintiff in error.

Cushing, P. J., and Ross, J., concur.  