
    Mock v. Mitchell et al.
    (Decided October 3, 1927.)
    
      Mr. Frank W. Emslie, for plaintiff in error.
    
      Messrs. Patterson, O’Brien <& Holland, for defendants in error.
   Vickery, J.

This cause comes into this court on a petition in error to the municipal court of the city of Cleveland; the purpose being to reverse a judgment that was rendered against the plaintiff in the court below, William L. Mock.

It seems that the plaintiff, who was a real estate agent, brought his suit in the court below to recover a commission for the sale of real estate, and set up that it was a verbal contract, and that the contract appears to have been made since the Legislature of Ohio amended the law, Section 8621, General Code, 111 Ohio Laws, 104, which provides in effect that, before any commissions upon an agreement for the sale of an interest in real estate can be recovered, there must be a contract or memorandum in writing, authorizing the employment of the agent. In this case the statement of claim sets up that the contract was verbal, and it is sought to evade the effect of this statute by pleading upon a quantum meruit. If a,man had a right of action on a quantum meruit, it would arise upon a contract, either express or implied, whereby he was to have certain compensation, the amount not necessarily named, for selling the real estate of the man to be charged; in this case, the defendants. If, by suing upon a quantum meruit instead of upon the contract, recovery could be had upon a verbal contract for the sale of real estate, if the work had been done, it would evade the very purpose for which the Legislature, at the instance of the real estate board of this city, and others elsewhere in the state, sought to have this law passed, to prevent suits of all kinds by persons who claimed a commission for the sale of real estate.

The case of Towsley v. Moore, 30 Ohio St., 184, 27 Am. Rep., 434, is cited, where a boy was employed at the age of 15 years, to work until he became 21 years of age, for a specific sum of money. He worked the entire time, and then brought a suit to recover compensation, and the defense was that it was within the statute of frauds, or that part of it which provides that no contract that cannot be performed within a year can be enforced, unless in writing, and that it was manifest that a boy could not perform services from the age of 15 to the age of 21 in one year. Therefore, the defendant in that action claimed that he was not entitled to recover his pay.

Of course that was not tenable, because there was such a performance of the contract as would take it out of the statute, and furthermore,' our Supreme Court has held that such a contract is not within the statute of frauds, because the boy might die within a year, and then the contract would have been completed. So they have held that no contract for personal services, no matter how long it may run, is within the statute of frauds, for the, reason that it may terminate by the death of either party during the year.

That is not parallel with the instant case. Usually suits for commission have been brought after the work has been completed, and sometimes three or four different agents have brought suits for commission for the same sale of the same piece of property, and it is to prevent that sort of thing that this act was passed, and' to permit a party to evade it by a subterfuge by pleading a quantum meruit is to defeat the very purpose of the statute. That being so, the statement of claim setting up that it was a verbal contract did not state a cause of action, and the demurrer was rightfully sustained.

We have said this much in this case, because there seems to be an opinion abroad among the bar, that, by suing upon a quantum meruit, one can evade the statute. This court has already held otherwise in another case, and for that reason we have made the remarks that we have in this case, although they are not necessary for the determination of this case, because an examination of the transcript shows that the transcript was filed the sixty-ninth day after the motion for a new trial was overruled. The lawyer representing the plaintiff apparently had forgotten the rule with respect to filing a transcript from the. municipal court, thinking it was 70 days. It is 70 days in the common pleas court, but only 60 in the municipal court, and, as this transcript was not filed until the sixty-ninth day, the court has no jurisdiction over the matter. It has been uniformly held that the filing of a transcript is jurisdictional, and nothing will take its place, so we might have spared ourselves any further remarks in this matter and have contented ourselves with simply dismissing the action for failing to file a transcript. Such will be the order of the court.

The cause will be dismissed for not filing a transcript within the required time.

Cause dismissed.

Sullivan, P. J., and Levine, J., concur.  