13 Ohio Misc. 280 | Oh. Muni. Ct., Vandalia | 1965
By agreement of the parties and counsel these cases were consolidated and tried to the court, a jury having been waived.
In each case plaintiff seeks recovery of a real estate commission by virtue of the terms of written listing agreements as executed by and between the several parties.
On May 15, 1962, the Webers owned and occupied the property on Gipsy Drive and on said date they listed same with plaintiff thereby employing plaintiff to procure a purchaser for same for a price of $14,900.00 at a commission of 6%, or if exchange 1% less on the even exchange portion. Plaintiff was given exclusive right to sell through August 15, 1962, and the Webers agreed to pay the commission if Webers sold or exchanged during the exclusive listing or sold within ninety days after the expiration of the listing to anyone with whom plaintiff had negotiated with respect to a sale during the listing period and of whom Webers had notice or knowledge. Thereafter plain
The evidence presented further shows by a preponderance that plaintiff during all the times material was a duly licensed real estate broker as required by law; that the Crawfords went through the Gipsy property once before they listed their Division Street property; that after the listing plaintiff showed the Gipsy property to the Craw-fords and thereafter on July 18, 1965, plaintiff obtained a written offer from the Crawfords to trade for the Gipsy property which offer was delivered to the Webers on said date and the Webers refused to read or discuss the same, or view the Division Street property at plaintiff’s invitation; that thereafter the testimony was to the effect that plaintiff endeavored by telephone on one or possibly two occasions, the times thereof uncertain, to interest the Webers in viewing the Division Street property and the response of the Webers was that they were not interested at that time; that the only other activity of the plaintiff pursuant to his employment was to show the Gipsy Street property to two couples and to take his salesmen through the Division Street property and show it to one couple, the dates thereof being totally absent from the testimony; that after the Webers advised plaintiff they were not interested, no further efforts of any kind were made by plaintiff pursuant to his employment contracts; that on or about the 8th or 9th of October, 1962, the Crawfords stopped at the Webers and engaged Webers in a conversation about their properties and in a few days the Webers viewed the Division Street property resulting in the Crawfords
Plaintiff predicates his claim for commissions on the ground that he was the procuring cause of the exchange between the several defendants, which the defendants deny. The defendants also claim that their respective contracts contemplate a commission after the exclusive listing period only if the property is sold, that there was a dual agency to which the Webers had not assented, and they strongly urge that plaintiff abandoned his contracts after failing at the initial stages to interest the Webers in the Crawford property.
A study of the cases and digests causes the court to conclude with respect to the defense that the properties were exchanged and not sold outright that the same is not well taken. In each contract the owners agree to pay a certain per cent as commission if sold and a different per cent if exchanged. In each exclusive listing sentence only the word “sell” is tfsed. Then in the succeeding sentence
With respect to the alleged defense of dual agency it is clear that the Crawfords employed plaintiff to go to the Webers and endeavor to negotiate for an exchange. It further appears that the Webers had knowledge of plaintiff’s employment by the Crawfords inasmuch as the listing salesman for each called upon the Webers and in their attempt to present the Crawford offer explained that a commission would be due from each employer. The Webers did not object to the double employment and about all plaintiff got out of Webers was “I don’t want that junk” when plaintiff endeavored to get Webers to read the Crawford proposal. Thus it is the Court’s opinion that such defense will not defeat a recovery in either case.
The court now considers what it believes to be the real issue in these cases. Was the plaintiff the “procuring cause” of the exchange between the defendants?
All courts generally agree that the phrase “procuring cause” means that cause which commences a series of events without break in their continuity which results in the accomplishment of the principal object of the employment — i. e., the procurement of a purchaser, ready, willing and able to buy the property on the terms and conditions imposed by the principal.
From a great deal of conflicting and often confusing evidence some definite facts may be sifted therefrom: (1) The Webers first employed plaintiff to procure a purchaser for the Gipsy Street property at a specified price and a “For Sale” sign was posted on the property (note: the sign did not include exchange). (2) The Crawfords seeing the sign were prompted to call plaintiff about the Gipsy property which immediately resulted in plaintiff obtaining identical employment from the Crawfords for Divisjoii
It is obvious that at the time the Webers listed with plaintiff that an exchange of properties was not under consideration. Plaintiff was employed to procure a purchaser. The subject of exchange was not introduced until the Crawfords authorized plaintiff to take an offer to the Webers for an exchange at the listing prices at which time, in good faith, the Webers were not interested. In each ease here under consideration plaintiff was employed to find or proenre a purchaser which imposed a duty upon the plaintiff to find a person ready, willing, and able at the time to take the property at the price and upon the terms stipulat
Heretofore in this decision the court has made a pronouncement as to the use of the words “sold” “sell” “sale” and “exchange” in the listing contracts and at this juncture clarifies the same by holding that the parties had in mind that “if an exchange,” then commissions would be due, but in neither case was plaintiff by the terms of the contracts employed to specifically find or procure an exchange customer.
In the absence of a special contract to the contrary, a broker must be the procuring cause of a sale or transaction in order to be entitled to commissions thereon. The broker’s efforts need not be the sole cause, but in the absence of special circumstances, they must be the predominating cause.
Having heretofore defined “procuring cause,” the court now recognizes that negotiations with the customer or prospect need not be uninterrupted so long as the continuity of the broker’s agency in bringing the transaction to a conclusion can be established. But if the negotiations are broken off and the broker thereafter abandons his efforts, or there is a substantial break in negotiations and the transaction is subsequently concluded by the principal without the aid of the broker, he may be denied any commissions.
The court observes that it is difficult, if not impossible, to reconcile the expressions of the courts in the various cases involving the commissions of real estate brokers, and it would be a profitless task to review even a limited number.
Generally, a broker is not entitled to commissions on a sale or other transaction consummated after he has abandoned his agency contract.
If a broker, after introducing a prospective customer to his employer to no purpose, abandons his employment
The mere fact that a broker shows property to a possible purchaser does not in and of itself entitle the broker to a commission when such prospective purchaser becomes the actual purchaser at some subsequent time in circumstances uninfluenced by the broker. Bauman v. Worley, 166 Ohio St. 471; Mars v. Miclan, 168 Ohio St. 144.
Specifically, plaintiff and his agents, did not produce a buyer ready, willing and able to purchase either property upon the terms specified. The most that may be said is that plaintiff’s agents produced a prospect ready, willing, and able to exchange for the Weber property. But they failed to interest the Webers. In fact, in this court’s judgment, failed to negotiate in any manner with any of the parties, and made no contact with the Webers or the Craw-fords after about the date of July 18, 1962. It is obvious that plaintiff did not consider the Webers a prospect for an exchange and did nothing to make them such a prospect. Plaintiff sat back and did nothing whatsoever and after the expiration of over two years by a coincidence discovered that an exchange had been consummated.
Without going into detail suffice it to say that the activities of the plaintiff under the undisputed facts do not square with ordinary procedure of real estate salesmen in attempting to make a sale in the ordinary course of a real estate agent’s business. It therefore affirmatively appears that plaintiff abandoned his contracts with the defendants on or about July 18, 1962, and that his activities and accomplishments did not rise to such a level that it can rea
Plaintiff real estate broker must establish that he is the primary proximate, and procuring cause, and it is not enough that he may have planted the seed from which the harvest was reaped.
In accordance with the foregoing plaintiff may not recover from the defendants and judgment must be in favor of the defendants and against the plaintiff in each case.
Judgments for defendants.