
    No. 855
    OFFINITZ v. PULIN
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 5737.
    Decided May 18, 1925
    630. INDUCEMENT—JBy an agent, that property would be sold if certain commissions were paid him, that he would sell for a certain price, and that he already had a purchaser, relates to the future and comprises the power to coritrol the action of future purchasers, and this control being an impossibility, such an inducement does not lie as a basis for recovery for a pretense of that nature.
    Attorneys—Smith, Olds & Smith for Offinitz; J. M. Friedlander for Pulin; all of. Cleveland.
   SULLIVAN, J.

Edward Offinitz brought his action into the Court of Appeals in a petition in error seeking to reverse a judgment rendered in the Cleveland Municipal Court in favor of Lena , Pulin upon a claim as asserted' by .him for $600 alleged to be due him for commission in acting as an agent for the exchange of certain real and personal .properties of the parties. The basis for this claim of Offinitz - was • a written, contract. The Court of Appeals, held:

1. From the record it appears that Pulin admitted the execution of said contract and-thereupon rested; and would have been entitled to judgment under the pleadings were it not for the fact that she went forward with the defense which consisted of conversations, had between parties and Offinitz as to the. amount ■ of his commissions, etc.

2. The court below allowed evidence of these preliminary conversation's to be introduced and by reason of Pulin’s. admission of the execution of the contract, her only purpose could have been to vary and contradict .the terms of a valid written contract, arid not upon the theory that the contract was superinduced, by, representations of Offinitz that he would sell her store for $6000 and that he already hád a purchaser.

3. If the case was tried on that theory,' the defense would have been based upon the allegations of' fraud by' a false - inducement and damages could be asserted because of the breach were-it not for the rule that an induce-, ment’rif this character, relating to-the future,. comprises the ■ power to control the action of third parties which might become future purchasers, and this control being an impossibility, such inducement cannot be a basis ^for recovery for a pretense of that nature. :.

4.From the answer and testimony, the defense instead of explaining or varying a valid written contract when there is no ambiguity or uncertainty therein, should be based on fraud, either actual or constructive, by way of inducement to the execution of the contract; or that action be taken for a reformation of the contract to the verbal agreements of the parties. Judgment reversed and cause remanded.  