Lowis v. Spitznaugle

155 N.E. 158, 23 Ohio App. 279, 4 Ohio Law. Abs. 643, 1926 Ohio App. LEXIS 427

Opinion

RICHARDS, J.

David Spitznaugle brought this action against Frank Lowis in the Lucas Common Pleas to recover commission for procuring a purchaser for certain real estate. The original contract was a written instrument, by the terms of which, a certain percentage was to be paid to the agent; and Lowis was to deliver to the purchaser a deed of general warranty with full covenants.

A purchaser was procured, who entered into a valid contract of sale; but said purchaser withdrew therefrom upon learning that the property was restricted, the contract setting' forth that there were no restrictions. A sign erected upon the premises recited also that they were unrestricted.

Lowis was either unable or unwilling to have the restrictions removed and declined to carry out the commission contract. The judgment in the lower court was in favor of Spitznaugle to the extent of $1174.07. Error was prosecuted and the Court of Appeals held:

1. The written terms of the employment made no reference to any restrictions and the agents would be entitled to assume, in the absence of knowledge to the contrary, that the owner was able to complete the contract of sale and make a good and sufficient deed to the purchaser.

2. Having accepted the employment as brokers and complied with the terms agreed upon, the agents were entitled to recover the commission, as failure to execute the deed was the sole fault of Lowis who knew, or should have known of the restrictions on his own property.

Judgment affirmed.