Baldwin v. Pickard

3 Ohio Law. Abs. 21 | Ohio Ct. App. | 1924

ALLREAD, J.

Epitomized Opinion

Action to recover real estate broker’s commission. The first cause of action declares upon verbal contract after it is reduced to writing for the.exchange of real estate upon certain terms; both the verbal and written contracts are based upon a double agency in which both parties to the exchange were to pay commissions. The second cause of action seeks recovery of the amount of commission payable by the other party to the exchange by a clause to that effect in the written contract upon the theory that the defendant refused to carry out the exchange.: At the close of the plaintiff’s evidence the trial court sustained a demurrer to the second cause of action. The first cause of action was submitted upon the evidence to the jury and a verdict was returned in favor of the defendant. On error proceedings the judgment was affirmed by the court of appeals, which held:

Attorneys—W. M. Isaly, for Baldwin & Co.; Hedges, Hoover & Tingley, for Pickard.

1. Thát there was no prejudicial or reversible error in submitting the case to the jury on the first cause of action.

2. That the second cause of action as stated in the petition was good and that the demurrer was improperly sustained but this error was rendered harmless by the verdict which necessarily found adversely to plaintiff, the issuable and controllable facts of the first cause of action and which facts were also controlling as to the second cause of action.