
    Steinen v. The J. P. Stotter Co.
    
      Brokers — Commission for sale of real estate — Two tracts listed and offer secured for one tract — Sale of both tracts later-consummated through another broker — First broker entitled to commission — Corporation purchasing property different from company making first offer — Negotiating agent, officer and stockholders of both companies, identical — Substance of corporations considered, rather than distinct entity, when.
    
    1. Where officers of material and realty corporations were identical, broker, having procured offer for one parcel of land from material company, held entitled to commissions on sale of parcel and other land to realty corporation by second broker, through common vice president, where owner either knew or should have known he was dealing . with substantially same purchaser.
    2. Even though corporations are distinct entities, courts look more to their substance than to their form in determining questions of substance or form in court procedure.
    (Decided October 11, 1926.)
    Error: Court of Appeals for Cuyahoga county.
    
      
      Messrs. Goulder, White & Garry, for plaintiff in error.
    
      Messrs. Mooney, Hahn, Loeser & Keough, for defendant in error.
   Sullivan, J.

This cause comes into this court on error from the municipal court of the city of Cleveland, wherein the plaintiff below, the J. P. Stotter Company, recovered a judgment of $1,000 from Frederick W. Steinen, based upon the claim that under the terms of the contract the Stotter Company, as real estate brokers, procured for certain property of the defendant a purchaser who was ready, able, and willing to carry out the terms of the contract of sale agreed upon.

The defense is made that the plaintiff company did not procure the purchaser under the terms of the contract, that the purchaser was procured by another agency, unconnected with plaintiff, and that the property was sold to a purchaser with whom the plaintiff company was unconnected.

It appears that there are two corporations, one known as the City Material Company and the other as the Material Realty Company, whose stockholders and officers are identical, and that the vice president of both companies was the principal active participant in the negotiations with both agencies with respect to the purchase of the property. The plaintiff, the J. P. Stotter Company, after the listing of the property with it by the defendant, exhibited the property to, and conducted negotiations with, the vice president common to both companies, and it appears from the testimony of the vice president that the City Material Company dealt in builders’ supplies and coal, and that the Material Realty Company was but a holding company for the City Material Company, for the purpose of holding all its real estate. Thus it becomes obvious, from this fact, that the pivot for the determination of the question of the identity of the purchaser of the property is the vice president common to both companies.

There were two pieces of property, a large tract, and one much smaller, and both of them were listed with the plaintiff, and after some negotiations, the plaintiff, after giving the defendant owner the name of the prospective purchaser, and mentioning him as a representative of the City Material Company, submitted an offer for the larger tract of land, in the sum of $20,000. Under the contract of brokerage, the sum demanded by the defendant was $28,000, for both pieces of property. It appears from the record that this larger piece of property was finally sold by a contract made in the office of the competitive broker, at the identical figure which was submitted by the plaintiff to the defendant as having been offered by the vice president common to both companies, and, while it is true that this sale included the smaller piece for an additional sum of $8,000, yet, in the absence of any agreement to the contrary, the brokerage fee would logically be figured from the price received for the larger piece of property as well as for the smaller piece of property. In other words, the brokerage for the sale of the larger piece would not be defeated because both pieces were not sold in one transaction, unless there was a mutual agreement that unless both pieces were sold simultaneously no brokerage would be allowed for either piece sold independently and separately. Therefore the claim of defendant that the second transaction, in which the conveyance of both properties was made to the Material Realty Company, was an entirely different one than that in which the plaintiff engaged, is not tenable, for the reason that there was no agreement that the-fee for the broker was conditional upon the sale of the property as a consolidated tract and as a single transaction. In their very nature they were separate and distinct pieces of property, and, while it appears from the record that the defendant was induced to close the transaction with the second broker because of the opportunity to sell both pieces at one and the same time, and to the same purchaser, yet even that does not change the right of the plaintiff to receive brokerage for the property which he sold under the terms of the listing thereof made by the defendant, especially when it appears that the same was consummated through the medium of the vice president of the two concerns, with whom the plaintiff first negotiated, and from whom the plaintiff received the offer of $20,000 for the larger piece, which was the sum finally received for that piece in the transaction involving the sale of both pieces of property7.

The claim is made by the defendant that he had no knowledge that the actual purchaser of the property was identical with the prospect who negotiated with the defendant for the sale of the larger piece of property through the plaintiff broker, but, when it is established by the record that the officers and stockholders of both corporations are the same, and that the man who was vice president of both was the negotiating agent, and further appears that in purpose and effect both companies are identical, we do not think, under this situation of the record, that there is any distinction or difference between the vice president acting as a medium with the plaintiff and the vice president acting as a medium with the competing broker in the final transactions with the defendant. It is well-settled authority that, even though corporations are distinct entities, courts will look more to their substance than to their form in deciding questions of substance or form in court procedure. This legal question, however, we think is eliminated from the case, because there is evidence in the record tending to show that the defendant either knew, or by the exercise of reasonable care should have known, that he was dealing substantially with one and the same purchaser, for it appears by the record that the plaintiff mentioned the name of the vice president and also the name of the City Material Company. This fact, whether it be inferential or otherwise, we think makes inapplicable to the case at bar the case of Stowe v. Regenstein, 14 Ohio App., 165, decided by the Court of Appeals of Cuyahoga county.

Under the pleadings in this case, all that was required for the plaintiff to recover was to satisfy the record with credible evidence, even though in conflict with other evidence in the case, that under the terms of the contract with the defendant the plaintiff company procured a purchaser for the property, who was ready, able, and willing to consummate the transaction under the terms agreed upon. If, in the second transaction, when the sale was consummated, it developed that it was made to the same purchaser secured by the plaintiff in the first negotiation, and at the same price, and under the same terms quoted by plaintiff, then, even though the closing of the sale was made by a second agent, the plaintiff would be entitled to recover his commission, because he had established, by credible evidence upon all the essential elements of the contract, his right to recover. We quote the following authority on this point:

“He [the broker] must be the means of bringing the parties together, unless the principal refuses to complete the transaction after the terms are arranged by the broker.” 9 Corpus Juris, 614.
“Where a broker employed to sell land produces a person whom he induces to buy, he is entitled to compensation, although the sale is formally effected by another broker.” 9 Corpus Juris, 617.
“This is also true where the owner at first refuses to accept the customer’s offer if, without revoking the broker’s agency, he subsequently accepts it.” 9 Corpus Juris, 618.

In the final analysis of the case at bar it appears from the record that, while legal questions are involved, they are involved only in a collateral sense, and the real question is, in our opinion, whether the judgment of the court below is clearly and manifestly against the weight of the evidence. If there is credible evidence tending to support the judgment, under the rulings in Ohio the judgment shall not be disturbed, unless, as a matter of law, there projects from the record a situation which shows misapprehension or error on the part of the court, and to such an extent that it shocks the senses, even though upon hearing the reviewing court would have decided differently than the trial court.

Holding these views, the judgment of the lower court is hereby affirmed.

Judgment affirmed.

Levine, P. J., and Vickery, J., concur.  