Morton v. Barney

140 Ill. App. 333, 1908 Ill. App. LEXIS 857

Opinion

Mr. Justice Freeman

delivered the opinion of the court.

It is urged in behalf of appellant that appellees failed to prove their employment as brokers; that in any event the judgment is erroneous because based not on the value of the north half of the dock strip, but on the price for which appellee Barney offered it to Kelley, Maus & Co.; that appellees were not the procuring cause of the lease to Kelley, Maus & Co.; that said lease was made by appellant through his own real estate agents, Dunlap Smith & Co., and not through appellees or any of them, and that certain instructions were erroneous.

As to the first of these contentions, that appellees failed to prove any employment as brokers by appellant or by Boekwell King in his lifetime, the only evidence relating to such employment is, first the fact that appellee Barney called on King and that thereafter, August 16, 1901, he submitted to Kelley, Maus & Co. an offer which he stated he was authorized by King to make, viz., to sell to said Kelley, Mans & Co. the north half of the dock strip which appellant and King then owned, for $158,000, or to lease the same for ninety-nine years at a stated annual rental; second, the fact that Barney wrote King August 27, 1901, that he had submitted said propositions to Kelley, Mans & Co., to which letter no reply was made; third, that January 25, 1902, Barney wrote King that he learned Kelley, Mans & Co. were “negotiating direct for a lease of your dock property” and stating that Kelley, Mans & Co. were appellees’ customers; fourth, a letter from King to Barney in which King states that he gave Barney “a price at which we would sell certain property on the west side which we own” and added “If you have any further commission from me I shall be pleased to be advised of it immediately;” fifth, appellees’ reply to that letter in which he calls attention to his own letter of August 16,1901, to Kelley Mans & Co., a copy of which he enclosed, and to his letter of August 27, 1901, to King “informing you of the fact that we had submitted the property in question to Kelley, Mans, either for purchase or lease.” It is apparent, we think, that this evidence fails to present any actual proof that King ever employed appellees or either of them as his broker. He himself in liis lifetime denied over his own signature that he did more than to give “Mr. Barney a price at which we would sell,” and tells Barney that if he has “any further commission from me I shall be pleased to be advised of it immediately.” He made such denial as soon as he had any intimation that appellees were inclined to claim that he might owe them a commission. In Barney’s reply to King’s request he does not claim to have been employed by King. He merely encloses a copy of his own letter to Kelley, Mans & Co. and calls attention to his own letter to King of August 27, 1901, in which he states that he made two propositions to Kelley, Maus & Co which the latter were favorably considering. Barney’s own letters could furnish no evidence against King, and if they could do so they contain no suggestion that King had ever employed him in any capacity whatever. Nor does King’s letter furnish any such evidence. In Rees v. Spruance, 45 Ill. 308-311, it was said that where an owner told a broker he might have all he could get for the property over a certain stun, it did not amount to an employment of the services of the broker. The court says: “We cannot hold that a mere proposition of this sort made upon the street in reply to a question asked by a broker about the price of a certain property understood to be for sale, amounts to an employment of the broker so as to entitle him to commissions on whatever price the property might bring. The defendant, it is true, found a purchaser through information furnished by the broker and would seem to be under a moral obligation to give him a reasonable compensation for the services thus rendered; but as he had never employed him the obligation is of that imperfect character which the law cannot enforce.” In the case at bar not only is there no evidence of employment of appellees, no sufficient evidence of any moral obligation even, but the letter of King expressly repudiates any employment of Barney. There is no warrant for the claim that where a broker goes to an owner asking and receiving the price of apiece of property he thereby becomes the agent of the owner entitled to commissions, if the owner subsequently disposes of the property. Nor can a broker by letters of his own addressed to a possible purchaser or by writing an owner that he has offered the property to such proposed purchaser make a contract of employment for himself entitling bhn to commissions. It takes two to make a contract of that kind, and an owner is under no obligation to respond to every letter he may receive from a real estate broker whom he has not employed. King, so far as the evidence tends to show, would have been under no obligation to sell or lease the property to Kelley, Mans & Co. had they chosen to accept the proposition submitted to them by Barney in his letter of August 16, 1901. The lease finally consummated between appellant and Kelley, Maus & Co. was in no respect the proposition made by appellees nor like it. It was neither a sale nor a ninety-nine year lease of vacant property. The terms and the whole situation were entirely different. What was actually done by appellant was to lease for a term of nineteen years the land appellant owned when appellee Barney inquired the price, together with other land subsequently acquired, appellant having meanwhile erected at his own expense, a large building on such land. In this transaction appellees had no part and apparently do not claim to have had.

Appellant urges that appellees were not the procuring cause of the lease made with Kelley, Maus & Co., and, as above indicated, the contention is, we think, clearly sustained by the evidence. There is evidence tending to show that in May, 1901, appellant’s real estate agents, Dunlap Smith & Co., before appellee Barney called on Bockwell King, had spoken to Maus with reference to changing their location. In June, 1901, and again in August of the same year, the same agents appear to have offered the dock property to Kelley, Maus & Co. It was on the 16th of August, 1901, that appellee Barney wrote Kelley, Maus & Co., claiming to be authorized to sell or lease them the same property. It is undisputed, however, that the transaction as finally consummated was carried through by the same real estate brokers, Dunlap Smith & Co., originally employed by appellant and King in the purchase of part of the property leased, subsequently employed in the purchase of the rest of it and in the sale of some of the land originally purchased at the partition sale, employed in the entire course of negotiation with Kelley, Maus & Co., and employed in procuring the ordinance for a driveway which made the property available to Kelley, Maus & Co., and seems to have removed the last obstacle to the lease as finally agreed upon. It is said in Whitcomb v. Bacon, 170 Mass. 479, 482: “Where several brokers have each endeavored to bring about a sale which finally is consummated, it may happen that each has contributed something’ without which the result would not have been reached; one may have found the customer who otherwise would not have been found, and yet the customer may refuse to conclude the bargain through his agency; and another broker may succeed where the first has failed. In such a case, in the absence of any express contract, that one only is entitled to a commission who can show that his services were the really effective means of bringing about the sale; or * * * the predominating efficient cause.” As was said in Sibbald v. Bethlehem Co., 83 N. Y. 378, 383: “A broker is never entitled to commissions for unsuccessful efforts. ” It is not pretended in the case at bar that appellees made more than an unsuccessful effort to sell or lease a part of the property. In Wilson v. Mason, 158 Ill. 304, 309, the court says: "The duty of a broker who is employed to sell real estate is to find and produce to the vendor a purchaser who is ready, willing and able to complete the purchase proposed. This he must do before he is entitled to commissions;” and the purchaser must be “willing, ready and able to perform the contract according to the proposed terms.” It cannot be contended in the case at bar, in view of the evidence, that Kelley, Mans & Co. were ever willing to buy or lease the premises offered to them by appellees in August, 1901, according to the terms which appellee proposed. There is no evidence, so far as we discover, tending to show that the nineteen-year lease as finally consummated was made through the instrumentality of appellees, through means by them employed, or through information derived from them. It is evident that appellees themselves had in view an entirely different transaction from that ultimately effected with Kelley, Maus & Co. for which they are now claiming to be entitled to commissions. If we assume for the sake of the argument that appellees were authorized by King to make the proposition stated in their letter of August 16,1901, nevertheless, as said in Close v. Browne, 230 Ill. 228, 241, “it cannot be presumed that the parties intend that the contract shall apply to a transaction wholly different from the one which they have in view when they enter into the contract.” See, also, Vreeland v. Vetterlein, 33 N. J. Law, 247; Davis v. Cassette, 30 Ill. App. 41, 45; McGuire v. Carlson, 61 Ill. App. 295, 300.

It is singular if appellees or either of them regarded themselves as employed to represent appellant and King they should have failed to go to them afterward in such capacity and to make further efforts to consummate some kind of a deal between such alleged employers and Kelley, Mans & Co. They appear to have submitted a number of other pieces of property to Kelley, Mans & Co., but seem to have abandoned any effort to induce Kelley, Mans & Co. either to purchase or lease the property in question after the failure of the first and only effort made by Barney. It is clear, we think, from the uncontroverted evidence that appellees fail to prove any contract of employment by appellant or King, that the lease as finally entered into was not procured by or through their instrumentality, that if we could assume the existence of an express or implied contract of employment of appellees as brokers, they yet failed to effect either a sale or lease on the terms they proposed, and no such sale or lease has been effected since.

Other errors are assigned and argued in the briefs, but in view of the conclusions stated, we deem it unnecessary to consider them.

The judgment of the Circuit Court must be reversed, with a finding of facts.

Reversed, with finding of facts.