
    Pfanz v. Humburg et al.
    
      Real estate agent — Entitled to his commission when property actually sold — Not an agreement of parties to buy, when — Binding conditions of contract between vendor and agent.
    
    P., a real estate agent, accepted the following written proposition:
    “Cincinnati, Ohio, May 2, 1905. “John Pfanz, Agent: I hereby authorize you to sell for me the following described real estate, located at 2241 Flora Place, for the sum of three thousand five hundred ($3,500.00) dollars on the following terms: title to be perfect, free and unincumbered, payments to be cash, and I agr.ee to give you sole authority to sell the same for the period of ten days, and agree to pay you for services when the property is sold. “Magdalena Humburg, “William Humburg.’’'
    
      P. procured one who said he was willing to take the property at said price, and he paid the agent $9.75, for which the agent gave a receipt, and turned the payment over to the vendors; but no written contract of purchase was entered into, nor was possession taken by the alleged purchaser, who afterwards refused to 'take the premises or complete the purchase by entering into an enforceable contract.
    
      Held: That the condition in -said contract of employment, “to pay for services when the property is sold,” has not been complied with by the agent and he is not entitled to recover commission.
    (No. 11389
    Decided March 15, 1910.)
    Error to the Circuit Court of Hamilton county.
    The controversy between the parties was first heard by a justice of the peace, where the plaintiff in error prevailed and recovered judgment against the defendants in error. The latter appealed to the court of common pleas, where an issue was made up by the petition and answer thereto. As the contract between the parties is copied in the petition, we make the petition a part of this statement, as follows: “For his cause of action
    against the defendants herein, plaintiff says that on May 2, 1905, he entered into a contract in writing with the defendants herein, a copy of which is as follows, to-wit:
    ‘Cincinnati, Ohio, May 2, 1905.
    ‘John Pfanz, Agent: I hereby authorize you to sell for me the following described real estate, located at 2241 Flora Place, for the sum of three thousand five hundred ($3,500) dollars on the following terms: title to be perfect, free , and unincumbered; payments to be cash, and I agree to give you sole authority to sell the same for the period of ten days, and agree to pay you for services when the property is sold.
    • ‘Magdalena Humburg.
    ‘William Humburg/
    “Plaintiff says that on or about May 9, 1905, he procured in writing a purchaser for the said premises, in accordance with the terms of said contract, who was ready, able and willing to purchase said property in accordance with the terms of the contract above set forth, and so notified the defendants.
    “Plaintiff says further that having done and performed all the things by him to be done under said contract on his part, he made demand of said defendants for seventy dollars, being the amount due him for compensation on said sale, and a reasonable sum due him for services thus rendered, but that the defendants refused to pay him said sum of seventy dollars thus due' him as aforesaid.”
    Then follows a prayer for ■ judgment for the amount and interest thereon.
    The following answer was filed: “And now come the defendants and for answer say that they admit that this cause comes into this court on appeal from the judgment of James M. Brant, justice of the peace in and for Cincinnati township, and that they entered into the written contract dated May 2, 1905, a copy of which is set out in the petition. For further answer these defendants deny each and every other allegation in the petition contained.”
    
      The case came to trial before a jury, and after the plaintiff had introduced his testimony and rested, the defendants moved the court to direct a verdict in their favor, and the court sustained the motion, overruled motion for new trial, and rendered judgment on the directed verdict. The circuit court affirmed the judgment.
    
      Mr. A. L. Herrlinger and Mr. Edward T. -Dixon, for plaintiff in error.
    Where the real estate agent finds a purchaser who is ready, willing and able to take the property .at the stipulated price, no written contract of purchase signed by the prospective purchaser is necessary to enable the agent to recover his commission. Weatherhead v. Ettinger, 78 Ohio St., 104; Brooks v. Wortendyke, 18 Dec., 789; Gonzales v. Broad, 57 Cal., 224; Barber v. Heade, 10 C. C., N. S., 343; Heintz v. Boehmer, 4 N. P., 226; Duclos v. Cunningham, 102 N. Y., 678; Casady v. Seely, 29 N. W. Rep., 432; Godley v. Haley, 17 Cir. Dec., 606; McFarland v. Lillard, 2 Ind. App., 160; McDonald v. Smith, 108 N. W. Rep., 291; Baars v. Hyland, 65 Minn., 150; Grosse v. Cooley, 45 Minn., 188; Christensen v. Wooley, 41 Mo. App., 53; Bailey v. Chapman, 41 Mo., 536; Nesbitt v. Helser, 49 Mo., 383; Hayden v. Grillo, 35 Mo. App., 635; Rapalje on Real Estate Brokers, 153; Phelan v. Gardner, 43 Cal., 311; Kock v. Emmerling, 22 How., 69; Branard v. Monnot, 33 How. Pr., 440; Flegel v. Dowling, 102 Pac. Rep., 178; Manker v. Tough, 98 Pac. Rep., 792; Willard v. Wright, 89 N. E. Rep., 559; Duffy v. Hobson, 40 Cal., 240; Campbell v. Galloway, 148 Ind., 440; Furst v. Tweed, 93 Ia., 300; Halsey v. Monteiro, 92 Va., 581; Fitzpatrick v. Gilson, 176 Mass., 477; Cook v. Welch, 9 Allen, 350; Desmond v. Stebbins, 140 Mass., 339; Middleton v. Thompson, 163 Pa. St., 112; Keys v. Johnson, 68 Pa. St., 42.
    If, however, a written contract is essential, sufficient memoranda passed between Ohlinger and the Humburgs through the agency of Pfanz to constitute the same. It is contended on behalf of plaintiff in error that the paper writing, which Pfanz gave Ohlinger for part payment of the purchase money, and the paper writing which Pfanz received from Mrs. Humburg, when he turned this money over to her, were separately and together such a memorandum as took the contract out of the statute of frauds. In other words, the broker at that point and for that purpose became the agent of both the seller and purchaser so as to comply with the statute of frauds. Palmer v. Insurance Co., 13 Mo. App., 471; Story on Agency (3 ed.), Sections 28, 31; Wharton on Agency, Section 715; 4 Am. & Eng. Ency. Law (2 ed.), 966; Hinckley v. Arey, 27 Me., 362; Coddington v. Goddard, 16 Gray, 436; Saladin v. Mitchell, 45 Ill., 79.
    Receipts, such as are in evidence in this case, setting forth fairly and with reasonable certainty the premises to be sold and the terms of the contract, have been reneatedly held to comply with the requirements of the statute of frauds, and to constitute contracts specifically enforceable. Browne on Statute of Frauds (5 ed.), Section 346; Lumber Co. v. Corey, 140 N. Car., 468; Timber Co. v. 
      Lumber Co., 85 Pac. Rep., 338; Barickman v. Kuykendall, 6 Blackford (Ind.), 23; Ellis v. Dead-man's Heirs, 7 Bibb (Ky.), 467; Williams v. Morris, 95 U. S., 445; Crotty v. Effter, 54 S. E. Rep., 345; Ellis v. Bray, 79 Mo., 227.
    A mere proposal by the owner delivered to the purchaser and assented to by him, though not signed by the latter, is a sufficient memorandum, and the agreement is in law “in writing and signed.” Furnace Co. v. Railroad Co., 22 Ohio St., 451; Timber Co. v. Lumber Co., 85 Pac. Rep., 338; Thayer v. Luce, 22 Ohio St., 62; Forthman v. Deters, 206 Ill., 159; Lowber v. Connit, 36 Wis., 176; Vilas v. Dickinson, 13 Wis., 488; Memory v. Niepert, 131 Ill., 623; Ames v. Moir, 130 Ill., 583; Ullsperger v. Meyer, 217 Ill, 263; Johnson v. Dodge, 17 Ill., 433; 3 Parsons on Contracts (9 ed.), 10, 11; Gartrell v. Stafford, 12 Neb., 545; Lee v. Cherry, 85 Tenn., 707.
    There is no distinction in law between the case of a real estate agent who undertakes to sell a certain piece of property, and that of one who undertakes to find a purchaser for it. McFarland v. Lillard, 2 Ind. App., 160; Barnard v. Monnot, 33 How. Pr., 440; Barber v. Heade, 10 C. C., N. S., 343; Treat v. De Celis, 41 Cal., 202; Duffy v. Hobson, 40 Cal., 240; Goss v. Broom, 31 Minn., 484; Reynolds v. Tompkins, 23 W. Va., 229; Lockzwood v. Rose, 125 Ind., 588.
    AATiere the actual sale fails of consummation because of the' seller’s inability to furnish a good title, the real estate agent is not thereby precluded from recovering his commission. Godley v. Haley, 17 Cir. Dec., 606; Carpenter v. Rynders, 52 Mo., 278; Phelps v. Prusch, 83 Cal., 626; Hamlin v. Schulte, 34 Minn., 534; Collins v. Fowler, 8 Mo. App., 588; Christensen v. Wooley, 41 Mo. App., 53; O’Niel v. Printz, 115 Mo. App., 215; Davis v. Morgan, 96 Ga., 518.
    We respectfully submit that where a sale fails of consummation because of the default of the seller, the broker may always recover his commissions from the seller, regardless of whether there is a binding contract of sale or not.
    This doctrine is so universal and so firmly established, and so intricately interwoven with the law of commission brokers, that we find numerous authorities sustaining it, even in the _ brief of opposing counsel. Brooks v. Wortendyke, 18 Dec., 789; Kronenberger v. Bierling, 76 N. Y. Supp., 895; Fittichauer v. Van Wyck, 92 N. Y. Supp., 241; Huggins v. Hearne, 74 Mo. App., 86.
    
      Messrs. Renner & Renner and Mr. Eugene Heim, for defendants in error.
    The agent agreed to be paid for his services when the property was sold. Counsel admit that Pfanz acted by and under the authority of the written contract set out in the petition on appeal. By it he was to be paid when the property was sold, and this language was his own on his blank. He therefore entered into a specific contract, and was bound by its terms, and no other. The property was not sold, and such failure was caused by the prospective purchaser. As between the sellers and their agent, the reason for such failure is immaterial. In fact, it is doubtful if, under the pleadings, it is competent to be gone into.
    
      Under the circumstances, the agent could recover only if an enforceable contract existed, binding would-be purchaser. Not only did Pfanz fail in selling the property, but he also failed to bind Ohlinger by enforceable contract to make the purchase. This left his principals without remedy against Ohlinger, and, in consequence, left Pfanz without remedy against them, since Ohlinger, and not the Humburgs, refused to consummate the transaction. Rapalje on Real Estate Brokers, Section 32; Gilchrist & Martin v. Clarke, 86 Tenn., 583; Tombs v. Alexander, 101 Mass., 256; Levy v. Kottman, 32 N. Y. Supp., 241; Condit v. Cawdrey, 139 N. Y., 274; Kronenberger v. Bierling, 76 N. Y. Supp., 895; Fittichauer v. Van Wyck, 92 N. Y. Supp., 241; Wilson v. Mason, 158 Ill., 304; Friestedt v. Dietrich, 84 Ill. App., 604; Jenkins v. Hollingsworth, 83 Ill. App., 139; Huggins v. Hearne, 74 Mo. App., 86; Michener v. Beirn, 9 Pa. C. C. R., 637; Francis v. Baker, 45 Minn., 83.
    The receipt herein is unenforceable as a contract by the buyer against him. Abandoning their position that an enforceable contract is unnecessary, the attempt is made by the other side to show that there is an enforceable contract here by reason of the agent representing both parties in the receipt.
    An agent may in a few scattered cases represent both parties in making memoranda under the statute of frauds, but they will be found generally to be cases of auctioneers and brokers as to chattel property, and in all instances the parties intended such action by the agent. No such intention can be gathered from the receipt herein that the prospective purchaser bound himself by a receipt of which he took possession given by the acknowledged agent of the seller. This purchaser in no way authenticated this receipt by signing it or authorizing the agent to sign it. The proposition seems too plain for discussion. 20 Cyc., 272; Levy v. Kottman, 32 N. Y. Supp., 241; Wilson v. Miller, 42 Ill. App., 332; Smith v. Jones, 66 Ga., 338.
    If, for the sake of argument, the contention of opposing counsel were accepted that Pfanz at the instant of this receipt signed by him acted as the agent of both parties, still we would have a document falling short of that completeness of memoranda required under Ohio settled decisions forbidding parol proof. Kling, Admr., v. Bordner, 65 Ohio St., 86; Anderson v. Harold, 10 Ohio, 400.
   Price, J.

This falls far short of making a sale, for many untoward incidents may occur after a purchaser is procured, which may defeat a sale without any fault on the part of the owners, the principals. This agent knew a Mr. Ohlinger, who had made inquiry about property, and the agent took him to the Humburg premises and they were examined by Ohlinger and also by his wife. They seemed satisfied with the property and the terms, and orally agreed to pay the price. But no contract was reduced to writing, and of course none signed. Ohlinger paid the agent $9.75, for which the latter gave a receipt. This receipt signed by plaintiff, the agent, stated, “the title to said property must be good and unincumbered except the taxes in December. 1905, and thereafter.” The agent turned the $9.75 over to the Humburgs, taking their receipt therefor. But Ohlinger signed- no writing whatever. And aside from the above contract of agency, the Humburgs signed nothing except a receipt to the agent for the $9.75. Ohlinger did not take possession, and nothing further was done towards completing a-sale. The plaintiff’s testimony shows that after Ohlinger had paid the $9.75. his attorney examined the title, pronounced it bad and advised Ohlinger against buying the property, and he acted on that advice' and there all negotiations ended. Neither the owners in person or by the agent, nor the prospective purchaser, signed any' contract of sale, and as possession was not taken, there was nothing but an unenforceable parol agreement. If this be true, it is quite certain there had been no valid sale made. The agent failed to procure .a contract of purchase and sale, which the owners could enforce, and under his contract of agency, he was required to make a sale, or secure a valid contract for the same, in order to receive compensation. This agency contract was not to merely procure an able, willing and ready purchaser, but the owners agree to pay for services when the property is sold. This condition is not met where a parol contract is made which can not be enforced.

As said in Wilson v. Mason, 158 Ill., 304-311: “The true rule is that a broker is entitled to his commission, if the purchaser presented by him and the vendor, his employer, enter into a valid, binding and enforceable contract. * * * An agreement by a real estate broker to procure a purchaser, not only implies that the purchaser shall be one able to comply, but that the seller and purchaser • must be bound to each other in a valid contract. So, where the agreement of the real estate broker is to make a sale, his commission is earned when a contract is entered into, which is mutually obligatory upon the vendor and vendee, even though the vendee afterwards refuses to execute his part of the contract of sale or purchase. An oral agreement upon the part of the purchaser of land would not be a valid agreement; and if he refuse to complete the sale of land after such oral agreement, without fault upon the part of the seller, the obligation of the broker would not be fulfilled, and he could not recover his commissions.”

This authority fully covers the present question; and we are satisfied with it. The failure to complete the sale in the present case was not through the fault of the sellers, for the record shows they tendered a deed to Ohlinger and urged his acceptance. The reason for refusal given by Ohlinger was that the title was not good, but the nature of the defect, if any, does, not appear in the record.

The above case cites others, and they may be found in the brief. Many of the authorities cited for plaintiff in error treat of cases where the sale failed of completion because of the conduct or default of the principal and where the agent had performed his whole duty.

The plaintiff in error, through his counsel, makes the proposition, that “where the real estate agent finds a purchaser who is ready, willing and able to take the property at the stipulated price, no written contract of purchase signed by the prospective purchaser is necessary to enable the agent to recover his commission.”

As a general rule, we may assent to it, but it can not be used to determine every case, especially in a case where the contract of agency is specific and clear as to the condition upon which commission can be recovered. Nor do we intend to hold that as a general rule it is a part of the agent’s duty to enter into a written contract with the purchaser for the sale of the property. This court held in Weatherhead v. Ettinger, 78 Ohio St., 104, that “a real estate broker is without authority to execute a contract of sale which shall be binding upon one who places real estate in his hands for sale unless such authority' is ’ specially conferred.” But the agent should go far enough to find a ready, able and willing purchaser and bring him and the owner together so that they may enter into a binding contract of sale and purchase. However, we need not further notice or discuss cases cited for plaintiff in .error, because it appears in the evidence in this case that the agent drafted the contract of agency involved here, and prepared it for the signature of his principals. He placed in it a condition not-frequently found in such agency contracts, and it differentiates this from the numerous cases cited in brief for plaintiff in error. After giving him sole authority for ten days to sell the property at the price named, title to be perfect, free and unincumbered, the owners agree to pay the agent for services when the property is sold. It is not averred in the petition, nor’ is it established by any evidence introduced by the agent, that a sale was made.

The writing, and the only writing between the purchaser and agent, was merely a receipt which the agent gave Ohlinger for $9.75 to be applied on the purchase price of the premises. He procured no obligation signed by Ohlinger. Therefore there was no sale made — no enforceable contract entered into by either vendor or vendee.

We find no error in the judgment of the lower court and its judgment is

Affirmed.

Summers,- C. J., Crew, Spear, Davis and Shauck, JJ., concur.  