#### Carey, Admr., *v.*Conn.

*Contracts*— Real *estate brolcer*— Agreement *to find buyer*— Agent *entitled to commission, when*— Res *adjudicata*— Action *by agent not barred, when*— Specific *performance by owner against purchaser.*

1. Where a real estate agent or broker makes a contract with the owner of property “to find a buyer for his real estate at a commission of two per cent, for his services,” and pursuant thereto performs such services by producing the buyer, and the owner enters into a written contract of sale with such buyer, the real estate agent or broker, in the absence of fraud, is entitled to his commission for his services.

2. If the contract between owner and purchaser, for any reason, fails of performance, and the owner thereafter brings a suit in specific performance upon such contract against such purchaser, the agent not being a party thereto, the judgment in the suit for specific performance is not *res adjudicata*against such agent.

(No. 17644

Decided February 20, 1923.)

Certified by tbe Court of Appeals of Van Wert county.

Burton C. Conn brought suit in the court of com mon pleas of Van Wert county, alleging that one J. B. Carey employed him “to find a buyer for his real estate in Union township, Van Wert county, Ohio,” and that Carey promised in writing to pay plaintiff “a commission of two per cent, for services as agent for selling his real estate holdings in Union township, Van Wert County, Ohio, provided said sale was made by July 1, 1912.”

*114Plaintiff further alleged that he, “relying upon •said promise of said decedent, J. B. Carey, performed such service for him, that, on the twenty-ninth day of June, 1912, said J. B. Carey, with his wife, Samantha Carey, sold said premises to the purchaser, furnished by this plaintiff, A. C. Stutsman, trustee, for the sum of sixty thousand dollars ($60,000.00),” by reason whereof Conn claimed he was entitled to a judgment against B. B. Carey, as administrator of the estate of said J. B. Carey, now deceased.

Plaintiff further alleged that such service was unpaid for during the lifetime of J. B. Carey, and that he duly presented his claim to the administrator, who had rejected same.

The defendant answered, and admitted the formal averments of the petition and the signing of the writing in question, but denied generally the other allegations of the petition. He further averred, as defense to such action, the doctrine of *res adjudicaba*growing out of a certain suit in specific performance between the decedent, J. B. Carey, and one A. C. Stutsman, touching the real estate in question, in which action judgment was rendered in favor of Stutsman, which cause was thereafter appealed to the court of appeals of *Van Wert county by decedent, and a like judgment therein rendered upon the pleadings and the evidence, and no further prosecution of error had.

The defendant further pleaded that the judgment in that action of specific performance “is conclusive evidence that no proper and valid contract was entered into by the decedent and the pretended purchaser * * * and that no valid sale was made by the said plaintiff of the lands described.”

*115Upon trial had in the court of common pleas, judgment was rendered in favor of plaintiff.

Motion for a new trial was overruled, and error prosecuted to the court of appeals, which, affirmed the judgment below. Finding itself in conflict with two judgments pronounced upon the same subject by the court of appeals of Hamilton county the cause was certified to this court for review.

*Mr. Clark*Good, for plaintiff in error.

*Mr. H. L. Conn*and *Mr. Clem V. Hoke,*for defendant in error.

Wanamakeb, J.

The court below found the existence of a contract between Burton C. Conn and J. B. Carey, that Conn performed the services therein provided for in behalf of Carey, and that by reason thereof Conn was entitled to a judgment for $1,200.

Complaint is made on behalf of the defendant below that the court erred in striking from the answer the defendant’s plea of *res adjudícala*arising out of the former action for specific performance brought by J. B. Carey against Stutsman, trustee.

It will be observed that Conn was not a party to that action. How then could he be bound in any wise by the result of such action? Why such action may have failed is of no consequence in the determination of Conn’s claim against Carey or his estate.

A further claim made against the petition and the evidence below is that the “plaintiff below, did not plead in his petition, nor did he offer upon the trial any evidence, showing that the purchaser, A. C. Stutsman, trustee, was able by reason of financial ability, to purchase on the terms set forth in the con*116tract, nor did he plead, or offer evidence to show that the said purchaser was ready, willing and able to purchase said property on the terms of the contract, or that said A. C. Stutsman ever did purchase and pay for said property, or comply with the terms of the contract; nor did he plead or show that said contract was a valid, binding and enforceable contract.”

The evidence offered in open court showed a contract of sale between J. B. Carey and A. C. Stutsman, trustee. That contract of sale made immaterial the complaint made by the plaintiff in error. The financial responsibility of the prospective purchaser was open to question by Carey until the contract of sale was agreed upon and completed. After the contract was duly executed by the parties, such contract constituted a waiver so far as Conn was concerned in regard to the purchaser being ready, willing, and able to purchase the property. Whatever infirmities may have arisen out of the contract and conduct of the parties thereafter did not and could not in any wise prejudice the rights of Conn to recover upon his contract to find such purchaser and make such sale.

We find no error in the record, and the judgment below is therefore affirmed.

*Judgment affirmed.*

Marshall, C. J., Robinson, Jones, Day and Allen, JJ., concur.

Matthias, J., took no part in the consideration or decision of the case.