
    REAL ESTATE BROKER — CONTRACT.
    [Stark Circuit Court.]
    Jenner, Pomerene and Adams, JJ.
    Roush v. Loeffler.
    Right to Recover Commission- Where Agency is Terminated.
    I/., a real estate broker, entered into a written contract with R., in which R. agreed to pay D. a certain sum of money on condition that he would sell certain real estate belonging to R. D. did considerable labor in endeavoring to sell said real estate to one S., and while negotiations were pending for the sale of such real estate to S., R. requested D. to deliver up said contract and end his agency, which D. agreed to do, provided R. would pay him the sum agreed upon, if the sale of such real estate should afterward be effected to S., and to that condition R. agreed, and the original written contract was delivered to him. Subsequently R. sold said real estate to S. In an action brought by Xi. to recover his commission from R.—
    
      Held: There was a sufficient consideration in the subsequent agreement between R. and L. to enable D. to recover his commission for such sale.
   Jenner, J.

(orally).

The case of R. C. Roush v. Herman W. Loeffler presents the question in the record as to the right of Loeffler, real estate agent, to certain commissions that he alleges is due him from Roush.

In his amended petition he avers that on the 16th* of October, 1891, he -entered into a written agreement with the defendant in which the defendant agreed to pay him the sum of one hundred ($100) dollars on condition that he would sell certain real estate for not less than $2,600; and he goes on to detail as to what he did in pursuance of his contract in endeavoring to effect a sale to some man by the name of Smith; and he further states that after he had done a good deal of labor in endeavoring to effect this sale, about the first of January, 1892, and while the negotiations were still pending for the sale, Roush came to bis office and wanted bim to deliver up tbe contract, and end bis agency. And', thereupon, he says be agreed to do that upon this condition — tbe written' .contract be was authorized to sell tbe land to anybody that be could effect the sale to, but be says the condition upon which the contract was surrendered, was, that if a sale was effected to this man Smith, by Roush, then Roeffler was to have bis commission of a hundred dollars. He says that was tbe contract,, and thereupon be banded over tbe written evidences of bis contract; and subsequently Roush did sell tbe land, part of it, if not all, to Smith, and be seeks to recover on bis contract; that is, I might say, on tbe verbal contract.

The answer admits tbe entering into tbe written contract; admits tbe delivering up of tbe written contract; but it is a substantial denial of all of tbe other averments of tbe petition.

'There was a demurrer, but we think the demurrer was properly overruled.

It can make no difference whether this is called a new contract, a new verbal contract, or whether tbe contract was banded over to Roush, tbe written contract, with tbe agreement that it should yet continue in force as a written contract, providing tbe sale was made to Smith in pursuance of the efforts and labor that bad been made by Roeffler, and subsequently consummated by Roush. . We cannot see any difference. It would be a very peculiar rule to say “Well, here now, was this, not a verbal contract ? What is tbe consideration for tbe verbal contract?” Well, tbe consideration for tbe verbal contract would be that Roush said, “ You let me have this written contract; I don’t want you to attempt to sell this land for me, to anybody.” Roeffler says, “We have already done a great deal of work so far as. Smith is concerned; we are willing to release our right to sell this to anybody else, if you will agree that if you consummate what we have already started and done work in if you will sell to Smith, to pay us our commission.” He agrees to that. No trouble about showing that be agrees. That is tbe consideration; and under tbe authorities that is all right; and we think tbe authorities cited here, in this 88d N. Y., is all right. It sustains counsel in their position, if the facts sustain them.

This 88d N. Y. case of Siebold v. The Bethlehem Iron Company, as to the duty of a broker of this kind: “ He cannot merely do some work, and realize no. results, and because a sale happens to be effected then after his contract is terminated he cannot come in and say, ‘ Now I want pay for what I didn’t do; ’ that he cannot do of course. The duty of a broker employed to sell property is to-bring the buyer and seller to an agreement. While it is not essential that he shall be present and an active participator in the agreement or sale, when it is actually concluded, to entitle him to his commission he must produce a purchaser ready and willing to enter into a contract on the employer’s terms. He is not entitled to commissions for unsuccessful efforts to effect a sale.” That is true, no doubt; and if Roush had said to Roeffler, “Yes,’if I can effect a sale to Smith of this land for $2,600, you shall have your commission; otherwise not; ” and he only sold it for two thousand dollars, we do not think Roeffler would be entitled to any commission; but they . make the proper averment in their petition and if the sale is effected to Smith then you are .to get your commission. They say he said that; he denies-it, but they produce two witnesses on that proposition, himself and another witness, Busby probably, a clerk, who has been in the office. And then Smith himself is also called, but he goes on to show what was done in the effort to make the sale, etc., but there is no dispute about that; it is admitted these efforts were all made, but he says they terminated too soon — before that sale was effected. Now, wasn’t-that under the facts of this case, a question for the jury, and a proper question? As a question of fact, the jury could find- — well, this man did a great deal of work in attempting to effect this sale, and by reason of his efforts the sale was made, and a contract entered into between Roush and Roeffler, as. Roeffler claims, why, the commission ought to be recovered.

We will not disturb this judgment. It will be affirmed,.  