I cannot agree with the majority of my colleagues in this decision to reverse the judgment of the Common Pleas Court in this case.
It must be kept in mind that the case below was tried to the court by agreement of counsel. In other words, the court was the trier of the facts. It hears the testimony of the witnesses; it observes the decorum of the interested parties, their candor or lack thereof, and is in better position than this court to assay the probative value of that testimony. The testimony of plaintiff's witnesses is in direct conflict with that of Dr. Sperti; the trial court had the right to believe the witnesses for the plaintiff, *Page 483 which it did. It is fundamental in the law that no reviewing court has the right to substitute its judgment for that of the trier of the facts, where there is substantial evidence to sustain the judgment. In my opinion, the majority of this court is substituting its judgment for that of the trial court; it is deciding what it would have done if it had been the trial court. The majority uses this language: "We find that the record shows without dispute that plaintiff, through its salesman, approached the defendant on behalf of one of its customers and offered to pay $100,000; that then a price of $125,000 was discussed, but whether defendant said, without qualification, it would accept $125,000, is in dispute * * *." In such a dispute, who is better able to determine where the truth lies, this court or the trier of the facts? Let us examine the testimony as interpreted by the majority opinion. "Mr. Madden [agent of plaintiff] talked to Mr. Jansen [agent of defendant] asking for some data concerning the property and when he called for that some time the latter part of November 1955, according to Mr. Jansen, he was told by him that the defendant would not sign any contract authorizing anyone to sell; that the defendant was already `dealing with another firm and there was a possible sale to them' and that`whoever sold the property would get the commission.' According to Mr. Madden, Mr. Jansen told him at that time that `there were other parties interested in the same property' and, referring to a later period, that `Mr. Jansen had been calling me, asking me to hurry my offer because these other people were getting closer to a deal.'" In addition to this, we find this statement of Madden's testimony set forth in the majority opinion, that "Dr. Sperti stated, without qualification, that he would take $125,000 for the property."
The majority, in its opinion, suggests that the evidence raises four questions:
"(1) Did the defendant authorize the plaintiff, at any time, to act as its agent in securing a purchaser for the Rookwood property?
"(2) Or was the plaintiff, at all times, acting for its customer desiring to buy the property?
"(3) If defendant authorized the plaintiff to find a purchaser, was it conditioned upon no sale being made to McConnell Smith? *Page 484
"(4) Was the agreement, if any, that only the broker who found the customer, to whom the property was sold, should earn the commission?"
In my opinion, all four of these questions can be answered by the following statement: There is substantial evidence in this record to the effect that the defendant entered into a unilateral contract by offering to pay a commission to plaintiff, if plaintiff procured a person ready, able and willing to pay on terms suitable to defendant. It isn't necessary that there be an express contract of employment in writing. If the plaintiff's agent, acting as a reasonable person, could conclude from the conduct of defendant's agents that plaintiff would be entitled to a commission, if plaintiff produced a purchaser on defendant's terms, then the defendant was making an offer, the acceptance of which would bind the defendant. In my opinion, there is substantial evidence in this record tending to prove the existence of such a unilateral contract. That is the sole question in this case. Is there, or is there not, any substantial evidence to sustain the judgment of the trial court? Let us look at the bill of exceptions. Starting with the events commencing on December 19, 1955, Madden went to Dr. Sperti's office with a written offer of $125,000. Dr. Sperti told Madden he "didn't think he could get such an offer"; Dr. Sperti's authority was stipulated. Defendant admits it would pay a commission if the property were sold on its terms. At that meeting, the terms of a lease back to Institutum Divi Thomae were agreed upon for the continuance of the Rookwood Pottery as a tenant; Dr. Sperti, Madden, and his clients and an architect went to the property between December 19 and December 29, and made plans for remodeling the property for Rookwood's occupancy; on December 29, Madden presented to Dr. Sperti a plat, the lease containing all the terms of rental of the space reserved for Rookwood; all the terms of sale were entirely satisfactory to Dr. Sperti; and so much so is this satisfaction expressed, that Dr. Sperti, according to plaintiff's witnesses, shook hands with Gerson, one of the prospective purchasers and said, "It's a deal." In pursuance of this situation, it was arranged to meet at the offices of Dr. Sperti's attorney, on January 5, 1956, to close the deal. The only purpose of this meeting was to *Page 485 close the deal with plaintiff's customers. The meeting for closing was advanced to January 4, at the office of Dr. Sperti's attorney; all parties were present, as agreed upon, and, after waiting for half a day, counsel for defendant announced that the property had been sold to McConnell Smith for $100,000, or $25,000 less than the price offered by plaintiff's clients.
In the face of this evidence, how can it be said: "there is no doubt that plaintiff was desirous of committing the defendant to the payment of a commission, but there is no evidence that defendant consented to any such commitment?" If there is a "dispute," as found to exist by the majority, then the finding of the trial judge is binding on this court. The trial judge properly found that "Mr. Madden was invited and encouraged by Dr. Sperti to submit an offer for more than $100,000." It makes no difference that the trial court might have improperly stated its conclusion of facts; if the judgment is supported by evidence, there can be no prejudice. Chader v. Knecht, 73 Ohio Law Abs., 134, 132 N.E.2d 227. In my opinion, any reasonable business man could come to no other conclusion than that, if Madden would produce a purchaser for $125,000 and an agreement with a lease back to Rookwood, the implication would follow that Dr. Sperti was free to accept such a deal and would pay a commission. 8 Ohio Jurisprudence (2d), 124, Section 48;Suter v. The Farmers Fertilizer Co., 100 Ohio St. 403,126 N.E. 304.
The majority cite the case of Bauman v. Worley, 166 Ohio St. 471, 143 N.E.2d 820, as authority in support of their decision. In that case the real estate agent was specifically employed as a broker to find a suitable home for Mrs. Gfroerer; the agent's services "were neither requested nor solicited by the defendants" (page 473 of the opinion). That is very different from the facts in the case at bar. The plaintiff's agent knew that the Rookwood property was for sale; he had a customer who was interested; the agent Madden made known to Sperti that he had such a customer, and expected to be paid a commission by defendant; and, as a matter of fact, the evidence is clear that defendant was to pay a commission to "whoever gets a purchaser, gets the commission." How can this be considered anything but an offer to pay a commission to plaintiff, if its *Page 486 agent produced an able, ready, and willing buyer, agreeable to the terms of defendant? Were those terms met? Were they agreeable to defendant? Was there a meeting of the minds? All of plaintiff's witnesses testified to what Dr. Sperti said: "It's a deal." Whom should the trial court believe? It seems to me that there is more than substantial evidence in this record to prove that plaintiff's agent rendered real services for the defendant; that the defendant accepted those services, knowing that they were being rendered for defendant's benefit; and that plaintiff was relying on defendant's obligation to pay for same. In other words, the plaintiff had produced a purchaser, ready, willing, and able to buy on terms acceptable to defendant. The defendant was never under any legal obligation to sell to McConnell Smith until after it signed the agreement with them. Where, as in the case at bar, the obligation to pay a commission was attached, the defendant, by conveying to another, cannot avoid liability to the real estate agent.
But aside from all this, I come to the real and only point for decision in this case, and that is, not would this court have decided the case as the trial court did, if it were sitting as the trier of the facts, but, is there any substantial evidence warranting the trial court in deciding the case as it did? In my opinion, there is such evidence, and the judgment should be affirmed.