
    Young, d. b. a. Frank Young Realty Co., v. Meszaros et al.
    (Decided March 17, 1930.)
    
      
      Mr. Frank A. Green and Mr. G. Z. Weintraub, for plaintiff in error.
    
      Mr. James L. Lind, for defendants in error.
   Levine, J.

The parties appear in the same order as they did in the municipal court. The statement of claim purports to be an action to recover a broker’s commission from the defendants, Vincent Meszaros and Lena Meszaros. When the case came on for trial, an objection was made to the introduction of any evidence, which objection was sustained, Whereupon the defendants moved for judgment upon the pleadings, which motion was granted and judgment entered accordingly.

It becomes necessary to examine the statement of claim in order to determine whether or not the same sets forth a cause of action. There is attached to the statement of claim what purports to be a written agreement between the parties, which is as follows: “Party of the First Part agrees to pay $200.00 commission to Frank Young Realty Co., for services already rendered.”

The action of the court was on the ground that under the wording of the statute of frauds, Section 8621, General Code, as relates to claims for real estate commission, there was no compliance therewith. It is contended that in order that there be a compliance with the statute of frauds as it now reads (111 Ohio Laws, 104), the memorandum of an agreement required by such statute must contain the entire contract, and state its terms with such clearness and certainty that they may be understood from the writing itself without resort to oral evidence or any implication as to meaning intended.

From the statement of claim it appears that the negotiations between the parties were verbal, and if plaintiff were to depend on such verbal agreement the conclusion reached by the municipal court would be undoubtedly correct. A close examination of the statement of claim, however, discloses that the plaintiff relies wholly upon the written agreement which is attached to the petition, wherein the defendants promise, in writing, to pay $200 commission to plaintiff for services already performed. If under the same circumstances the defendants executed a promissory note to the plaintiff for $200, and suit was entered thereon, it would be no defense to the action that the note was given for services rendered in connection with the sale of real estate upon a verbal understanding between the parties. We can see no distinction between the promise made in the present case and the giving of a promissory note, except that the former is non-negotiable.

The statute of frauds, it must be remembered, is purely defensive in its character, of which the party sued may avail himself. He may, if he chooses, waive that defense. In the present case this promise in writing for $200 commission for services already performed merely amounts to a waiver of the defense of the statute of frauds, of which the party could have availed himself if he chose.

If it be contended that there was no consideration for the written promise, and were the court to seriously consider said contention, that fact would not justify the trial court in rendering judgment upon the pleadings, because the matter of consideration may be shown by parol evidence and need not be contained in the writing itself.

We are of the opinion that the statement of claim sets forth a valid cause of action not for the real estate commission, as such, but instead it is a cause founded upon a written promise which may or may not have been supported by a consideration. It is, in our opinion, the duty of the trial court to overrule the objection to the introduction of any evidence and hear testimony upon the issues presented.

Holding as we do, the judgment of the municipal court is reversed, and the cause is remanded for a new trial according to law.

Judgment reversed and cause remanded.

Vickerv, P. J., concurs.

Sullivan, J., not participating.  