Lohmeyer v. Williams

BARNS, J.: This matter is on certiorari to review a circuit court judgment which affirmed on appeal a judgment of the Civil Court of Record. The plaintiff-appellee, Dawson, a real estate broker, sued the defendant-appellant, Lohmeyer, for services alleged to have been rendered on or about June 15, 1946, in finding a purchaser ready, able and willing to buy the Lohmeyer property. Plaintiff alleges that Lohmeyer had listed the property with her. The listing was solicited by the plaintiff, or her agent, who procured one Burke, interested in purchasing. About June 17, 1946, the plaintiff caused to be tendered to the defendant a proposed contract of purchase and sale signed by Milton M. Burke, as purchaser, and a check for $2000, payable to “Leta S. Dawson, Escrow Agent,” also an inventory of furniture which Lohmeyer was requested to acknowledge by signing, as a condition of the offer and as a part of the consideration for the sales price of $35,000. The tendered contract called for closing within thirty days. Lohmeyer refused the tendered offer on the ground that (1) the inventory contained items of furniture which were not to be included in the sale; (2) because the check was made payable to the broker instead of to him; and (3) ’because the closing date was thirty days instead of September 15, 1946, as previously specified by him. *942 Since there is evidence without conflict supporting the petitioner as to (1) and (2) supra and only slight conflict as to (3) supra, it appears that the certiorari should be, and same is hereby, granted, and the judgment of the Civil Court of Record and the Circuit Court judgment of affirmance are quashed and the cause remanded to the Civil Court of Record for further proceedings. TERRELL, ADAMS and SEBRING, JJ., concur. HOBSON, J., concurs specially. THOMAS, C. J., and CHAPMAN, J., dissent.