
    Kenzig v. Cibula.
    (Decided April 14, 1930.)
    
      Mr. J. W. KulJca, for plaintiff in error.
    
      Mr. Fred E. Bruml, for defendant in error.
   Vickery, P. J.

This action comes into this court on a petition in error to the municipal court of the city of Cleveland. In the court below the defendant in error, Michael Cibula, as a real estate agent, brought his action to recover a commission for procuring a trade of real estate.

It seems that Cibula closed a contract between Mary Kenzig and Dene Chafetz, which was drawn by Ed David, attorney for Mary Kenzig. That contract provided that Mary Kenzig should pay Cibula four hundred dollars and Dene Chafetz pay Cibula three hundred dollars as commission when the property was transferred. Both parties signed this contract, which contained a full description of both parcels of property and the terms upon which each was to be transferred. After the contract had been signed by both parties, and it contained a provision that the real estate man should get his pay, although Dene Chafetz was ready, able and willing to convey, and in fact made a deed and tendered it, Mary Kenzig ■withdrew from the contract and refused to go forward, and Mr. David notified the other parties that his client had so determined and he so testified in court.

Cibula, the real estate man, having done all that he could do — that is, having made the parties enter into a valid binding contract — and one party being ready, able and willing and anxious to go forward, and being prevented from having the contract completed by an actual conveyance only by Mary Kenzig declining to go forward and withdrawing entirely from the contract, under such state of affairs Cibula brought an action setting up two separate causes of action. One cause of action was on a contract for the commission that Mary Kenzig had agreed to pay him, and the other cause of action was for the commission which he was prevented from earning, which the other party had promised to pay to him.

On the trial of the action the court found for the plaintiff on the first cause of action and rendered a judgment in favor of Cibula, but rendered a judgment in favor of the defendant upon the second cause of action, and it is to reverse the judgment upon the first cause of action that error is prosecuted here. The defendant in error not filing any cross-petition in error on the second cause of action, that matter is not now before us.

The only question then is, Was the judgment against Mrs. Kenzig for four hundred dollars right in this case?

Several errors are urged as to why this judgment should not be sustained, but we think they are unavailing. A suit Avas brought on a contract. We think that the plaintiff had performed his contract; he had brought these parties together and had them enter a binding contract, and the only reason why the conveyance was not made was because of the default of Mary Kenzig, the defendant in this action, and so, if there was not a full performance of the contract, it was because the action of Mary Kenzig made it impossible to perform. There was no way that the real estate man could either bring a suit for specific performance or compel Mary Kenzig to live up to her contract. The real estate man had done all that it was possible for him to do, and it cannot be possible that, after the other parties had gone to the extent they did, a person can escape responsibility on his contract by simply changing his mind after the work has all been done. Of course, had the other party, Mrs. Ohafetz, backed out and Mary Kenzig been ready, able and willing to perform her contract, she would not be liable for her part of the commission, and that is the reason why the other party would not be liable for a commission in the case as it is. If Cibula had brought an action against the other party, Mrs. Ohafetz, for his commission, he would have been met with this original contract, and that party being ready, able and willing to go forward, and Mary Kenzig not going forward, would afford a complete defense for that party against any commission, that Cibula might seek to recover against her.

But that is not the situation with respect to Mrs. Kenzig. For all intents and purposes this conveyance was made, so far as Cibula was concerned. He had done all that he could do and the only reason that he did not get his money was that Mrs. Kenzig, after having entered into a binding contract, had refused to go forward; in other words, she made impossible a more complete performance by the real estate man, for, inasmuch as it was beyond his power to order a conveyance by Mary Kenzig, and was not able to make it himself, he was powerless, and inasmuch as he had done all that he was called upon .to do, he had in effect performed his contract fully, and the only reason the conveyance was not made being because of the wrongful conduct of Mary Kenzig, we do not see why he should not be entitled to recover. The memorandum in the contract of mutual exchange was signed by both parties, and hence by Mary Kenzig, and the amount of Cibula’s compensation was clearly set forth, and it was clearly specified who was to pay it.

We think the court was right in refusing to permit the plaintiff to recover on the second cause of action, although that question is not before us, for there was no stipulation in any way that would make Mary Kenzig liable for $300.

Having gone over the entire record, we can come to no other conclusion than that the court below was right. The judgment will therefore be affirmed.

Judgment affirmed.

Sullivan and Levine, JJ., concur.  