Charles McCullough on behalf of himself and as next friend of Joseph Bien a minor, began the original action, in the Municipal Court of Cincinnati against Emma and Rudolph Ott. McCullough and Bien procured a purchaser for a house owned by the Otts. The price was $12,500 and the agents were to receive $500. The contract of sale was entered into and signed by the wife in the presence of the husband, and he passed upon it, favorably. A deposit of $200 an account of the purchase price was accepted. The Otts refused to convey.

The Municipal Court dismissed the action holding the sale was not completed and therefore commissions were not due. Error was prosecuted to the Hamilton Common Pleas, where the decision was reversed; the court holding that it was fraud upon the purchaser to permit the Otts to refuse to carry out the contract. Thereupon Otts prosecuted error to the Court of Appeals where the decision of the Common Pleas was reversed, because the contract of sale was not valid, no sale having been completed and no commission earned. The case of Pfanz v. Humburg 82 OS 1, was cited in all three courts as authority.