
    FRANKS v. BLAIR REALTY CO.
    Ohio Supreme Court.
    No. 21088.
    Decided Dec. 12, 1928.
   JONES, J.

REAL ESTATE.

(510 B 2e) On February 18, 1926, the owner of real estate listed his property with a broker and agreed in writing to pay the broker for finding a purchaser a certain commission if the property were sold within the period of five days. At the expiration period owner orally promised to extend indefinitely the time of performance. In reliance upon such, oral promise the broker continued its efforts to find a purchaser. Meanwhile, the owner, in disregard of his oral promise, proceeded on his own behalf and, by employing another broker at a reduced commission, consummated a sale by exchange of properties with a purchaser with whom the first broker was also negotiating: Held:

The time for performance was of the essence of the written contract. The subsequent oral agreement was a new contract and, by substituting a new time for performance, varied an essential term of the written contract and was invalid and unenforceable by reason of the provisions of the Statute of Frauds relating to the payment of real estate commissions. (Section 8621, General Code).

During the existence of the extended time for performance and while the transaction remained unexecuted, such oral promise being invalid, either party could decline to carry out its terms either in the finding of a purchaser or for the payment of a commission.

Since the owner did not complete his contract with the broker and accept the latter’s services in negotiating a sale, but secured another broker who consummated it, the owner is not estopped from asserting the invalidity of his oral promise.

Marshall, C. J., Day, Allen, Kinkade, Robinson and Matthias, JJ., concur.  