Dickinson v. P. J. Hooker Co. (23 Ohio App. 230, 1926)

Richards, J.

The Hooker Company brought an action to recover commission on a written contract for the sale of real estate. The trial court, at the conclusion of all the evidence, directed a verdict in favor of that company, and judgment was rendered thereon.

The rights of the parties depend on the construction of a writing executed by them on October 21, 1924, the material parts of which read as follows :

“For and in consideration of the broker’s effort to sell the owner’s property or business, or both, and to advertise the same in accordance with their sales plans, the owner hereby gives the broker exclusive right to sell or exchange the within described property or business on the following terms, to wit: Price: $5,500. Terms: Any offer cash and balance at the rate of 6 per cent, interest in monthly payments, * * * or upon any other terms or price to which the owner may consent.

“It is further agreed by and between the owner and the broker that the owner shall pay to the broker a commission of 10 per cent, of the selling or exchange price out of first money received for said business, if sold during the life of this contract, by the owner, broker, or by any other person or parties, * * *. This agreement may be terminated by the owner at any time after-months from date hereof by ten days’ written notice to cancel; otherwise the same shall be in full force and binding upon both parties hereto.”

There is some doubt whether the blank left in the contract for the number of months was filled in “3 mo.” or “30 days,” but, as the contract was to remain in force until written notice was given to cancel the same, and the record contains no evidence of any such notice, the precise time named in the contract is immaterial.

The uncontradicted evidence discloses that the Hooker Company advertised the property both in Detroit and Toledo, and made efforts to effect a sale, but that Mrs. Dickinson, on January 24, 1925, sold the property through one Allman for $2,700. The evidence also discloses that at or shortly after the execution of the contract between the parties Mrs. Dickinson paid the Hooker Company $35. The verdict was directed for $250.77, which was evidently 10 per cent, of the sale price, plus interest thereon, and less the amount of $35 agreed to have been paid. In view of the fact that the written agreement for the sale of the property provided that the property might be sold for the amount stipulated in the writing, or upon any other price to which the owner consented, and that the commission was to be paid if the property was sold during the life of the contract, whether by the owner or any other person, we can perceive no reason why the court was not justified in directing a verdict for the plaintiff.

Judgment affirmed.

Culbebt and Williams, JJ., concur.