Opinion
No. 23361
Decided April 6, 1955.
Real estate brokers — Property sold after exclusive listing contract terminated — Broker not entitled to commission, when — Evidence — Paper not admissible as business record, when — Section 2317.40, Revised Code — Notes made by salesman while talking with purchaser.
1. Where a real estate broker's efforts are not the procuring cause and do not contribute to the sale of a house, and such real estate broker fails to negotiate for the sale of such property with a person who purchases such property after such real estate broker's exclusive listing agreement therefor has expired, such real estate broker is not entitled to a commission by reason of the sale of such property.
2. A piece of paper on which such real estate broker's salesman had made a few notes while talking with such purchaser, which piece of paper was not part of any system of such real estate broker in recording events of his business and was carried around in such salesman's wallet for the most part or left in some undescribed place on his desk, is not admissible in evidence as a business record under the provisions of Section 2317.40, Revised Code.
APPEAL: Court of Appeals for Cuyahoga County.
Mr. James C. Maher and Mr. Pierce J. O'Connor, for appellee.
Mr. S. G. Vamos and Mr. George Mayer, for appellants.
This appeal comes to this court on questions of law from a judgment entered for the plaintiff in the Municipal Court of Parma, Cuyahoga County, Ohio. The plaintiff, appellee herein, seeks by this action to recover a judgment, claiming the right to a real estate commission by reason of the sale of defendants' house, located at 6403 Forest Avenue in the city of Parma, to Mr. and Mrs. Richard M. Blair.
The defendants, appellants herein, desiring to sell their property on Forest Avenue for the reason that they were then engaged in building a new home in Westlake, offered the Forest Avenue property for sale by advertising in the daily papers. The plaintiff, a real estate broker, noticed the advertisement and, through his employee or salesman, Julius Snyder, contacted the defendants, seeking the right to act for them in the sale of the property. After some negotiation, the parties entered into an exclusive agency agreement granting plaintiff the right to act as defendants' real estate agent for the sale of the Forest Avenue property for a period of 60 days. The agreement was dated July 23, 1953, and the period of the agency ended September 24, 1953. The plaintiff then advertised the defendants' property a number of times and, also, conducted an "open house" two or three times. No offer to purchase the property was procured by the plaintiff during the life of the contract.
Either on August 8 or 9, the plaintiff, through his employee, Mr. Snyder, was conducting an "open house" for the sale of a property on Charles Avenue belonging to Abe Holloway. Richard M. Blair called to investigate the Holloway property and, after an examination of the premises, concluded the price was more than he could pay. At the conclusion of these negotiations, Snyder told Blair of the Fialko property which he said was of colonial design and could be purchased for $1,300 less than the Holloway property and suggested, after showing a picture of the house, that Blair go and see it. Mr. Snyder called Mrs. Fialko to say that a Mr. Blair would stop by to see the house. The telephone call is admitted by the defendants but they deny that the name "Blair" was mentioned. In any event, Mr. Blair did not go to see defendants' house at that time, it being his testimony that he had driven by the house in May of 1953 after seeing defendants' advertisement and did not like some feature of the exterior.
On September 15, the plaintiff, through Mr. Snyder, renewed his efforts to induce Blair to buy the Charles Avenue property, but when this failed, the defendants' property was again suggested by Mr. Snyder who testified that Blair at that time said "I don't want to see it. * * * I don't like that blue gable out there."
The only notice plaintiff claims to have given the defendants that he was trying to interest a prospective customer by the name of Blair in defendants' property was the telephone call above described, and the sole effort in that regard was Snyder's suggestion that he go by and look at it, which suggestion or suggestions were met with Blair's refusal to carry out plaintiff's request. The plaintiff did not offer to take Blair to see the property or in any other way induce the sale to Blair.
After the exclusive agency expired, the defendants refused plaintiff's request to execute an extension of the agreement, and Snyder picked up the sale sign which had been placed on the property by the plaintiff. Mr. Snyder testified that he did not mention Blair to the defendants after the one telephone call because Blair was not interested.
When plaintiff's exclusive agency expired, the defendants again advertised their property for sale "by the owner." Blair noticed the advertisement on October 11 and went by the property with Mrs. Blair. Mr. Blair testified as follows:
"When we drove down the street, I said there is that same house. I have seen it about four times. It has a big blue dome on it. It has the listing of Parma Colonial Sixroom Colonial. I have come to see it five times. I said: `I don't like it.' She said: `Gee that is a pretty house.' I said: `Boy, I don't like it at all.' She said: `Well, it's open, let's go in and look around.'"
This was the first time either Mr. or Mrs. Blair made any examination of defendants' house. They went in and asked the price. Mrs. Fialko asked if they had been sent by a real estate agent, to which they answered no, saying they had seen the advertisement in the paper. Thereafter, the Blairs offered $15,300 for the house, which offer was accepted, and the transaction concluded.
The provision of the exclusive agency agreement upon which plaintiff claims the right to a commission is as follows:
"If you are successful in securing a purchaser for my, our property, or if the same is sold or exchanged during the term of your exclusive agency, or within three months thereafter to any one with whom you have negotiated with respect thereto during the period of this agency, and of whom I, we have notice, I, we agree to pay five per cent. * * *"
Two questions are presented: First, is there any evidence that the plaintiff "negotiated" for the sale of defendants' property with Blair?; second, did the plaintiff give notice to the defendants sufficient to advise them that Blair was a prospective customer, procured and negotiated with by the plaintiff in the interest of inducing a sale of the property?
The term, "negotiate," is defined in Webster's New International Dictionary (2 Ed.) as: "To transact business. To * * * treat with a view to coming to terms upon some matter, as a purchase or sale * * *. * * * To carry on negotiations concerning; to procure, induce, or arrange for, by negotiation * * *." Black's Law Dictionary (4th Ed.) defines "negotiate" as: "To transact business, to treat with another respecting a purchase and sale * * *." The only acts of the plaintiff, as disclosed by the record when considered in its most favorable light for the plaintiff, fall far short of bringing his efforts to sell the defendants' property to Blair within the terms of the exclusive listing contract. In fact, there is no evidence that negotiations were carried on looking to a sale of the property. All the plaintiff did was to ask Blair to go by and see the property. When this request was repeated again, while plaintiff was "`negotiating" to sell Blair another property, he was told frankly and definitely that Blair was not interested in defendants' property (which statement was honestly made). The plaintiff then dropped any further effort to interest Blair in defendants' property. In fact, the plaintiff is frank to admit that when the exclusive contract came to an end he did not consider Blair a prospect; nor is there the slightest suggestion that the plaintiff ever considered Blair a prospect for defendants' property. There was never an attempt to show Blair defendants' home, or was any other act performed that might be considered as an attempt to interest Blair in defendants' property. The claims 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.
While this finding is dispositive of the case, other questions should be briefly considered.
The question of sufficient notice is directly raised by the defendants. The plaintiff depends entirely upon the one telephone call to Mrs. Fialko that a Mr. Blair would be by to look at the house. This is the only contact the plaintiff had with the defendants concerning Mr. Blair. Admittedly, there were a number of contacts between the parties after August 8 or 9, whichever date was the one when the telephone call was made, and at no one of such subsequent contacts was Mr. Blair's name ever mentioned. We hold that the plaintiff's case also fails for want of notice.
From the undisputed facts in the case, the plaintiff's efforts were not the procuring cause of and did not contribute to the sale of the defendants' house to the Blairs. This conclusion must follow from the failure of plaintiff to "negotiate" for the sale of defendants' property with the Blairs or notify the defendants that such negotiations were in progress.
The court admitted into evidence a piece of paper on which the salesman, Snyder, had made a few notes while talking with Mr. Blair at the Holloway residence. The paper was admitted into evidence as a business record under the provisions of Section 2317.40, Revised Code. There is no support for admitting this exhibit into the record. The piece of paper was not a part of any system of the plaintiff in recording events of his business. The paper was carried around in Snyder's wallet for the most part or left in some undescribed place on his desk. It constituted error prejudicial to the rights of the defendants to admit such paper into evidence on the theory that it was a business record.
For the foregoing reasons, the judgment of the Parma Municipal Court in favor of the plaintiff is reversed and final judgment is entered for the defendants.
Judgment reversed.
KOVACHY, P. J., and HURD, J., concur.