Fox v. Ryan

• Decision Date: 16 June 1909
• Citation: 88 N.E. 974,240 Ill. 391
• Parties: FOX v. RYAN.
• Court: Illinois Supreme Court

240 Ill. 391

88 N.E. 974

FOX

v.RYAN.

Supreme Court of Illinois.

June 16, 1909.

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; Axel Chytraus, Judge.

Action by John F. Fox against Patrick Ryan. Plaintiff had judgment, and defendant appeals. Affirmed.M. Henry Guerin, for appellant.

Adler, Lederer & Schoenbrun, for appellee.

FARMER, C. J.

This is an action of assumpsit begun in the superior court of Cook county to recover $4,000 commissions claimed by appellee, plaintiff below, to be due him for services as a broker in effecting a sale of mining stock for appellant. The declaration contained the common counts only, to which the general issue was pleaded.

The appellant and two other parties owned, in round numbers, 156,000 shares of stock in the Golden Star Mining Company, whose property was situated in Utah. The greater portion of the stock was owned by appellant. Appellee is a broker, with offices in the city of Chicago. Peter L. Kimberly and Louis C. Houck owned the stock of the Annie Laurie Company's mine, which adjoined the Golden Star Mining Company's property. Appellant applied to appellee to negotiate a sale of the stock of the Golden Star Mining Company to Kimberly at the price of $1.35 per share. Appellee testified that appellant told him of the situation of the Annie Laurie and Golden Star properties, that the latter owned or controlled the apex of the Annie Laurie vein, and that it was important to that company to own the Golden Star Company's property. Appellee took the matter up with Kimberly and Houck, and visited the latter's office a number of times. He testified the appellant told him if he would effect a sale of the stock he would pay him 5 per cent. commission; that some time-two weeks or a month-after appellee's employment appellant came to him and told him they would not be able to get the price desired for the stock from Kimberly, and said, ‘But I will pay you $4,000 if the deal goes through,’ to which appellee replied that would be satisfactory; that he would accept the $4,000, and appellant could go ahead and close up the deal with Kimberly. Appellant denied this conversation about the $4,000, but appellee was corroborated by another witness, and the facts are settled by the judgment of the Appellate Court. Letters written by appellant to appellee offered in evidence show conclusively the employment of appellee by appellant to sell the stock to Kimberly or Houck or both of them. Appellee testified that at the time of the talk about the $4,000 appellant said he would carry on the deal with Kimberly direct. On April 4, 1901, appellant wrote appellee: ‘I closed deal with Kimberly last night on the basis I told you about. I leave for Salt Lake City at once, as the deal will have to be closed from that end. I expect to be back in about two weeks.’ The contract of sale between appellant and Kimberly appears to have been prepared in Salt Lake City, and deposited, with the stock, in a bank in said city. It does not appear that the appellee ever saw the contract, and it was afterwards destroyed by fire in the appellant's office in Salt Lake City. Appellant contends that it was not a sale outright, but was an option contract, and was forfeited, pursuant to its terms, for noncompliance with it on the part of Kimberly.

The only testimony as to the terms of the agreement offered at the trial was that of appellant. Kimberly and Houck both died before the trial. Appellee insists that the contract with Kimberly was not an option contract, but was a sale, and enforceable as such. As both parties have abstracted the testimony of appellant on the subject of the terms of the contract with Kimberly, and as they differ as to what his evidence proves, we have read it from the record. The appellant was placed on the stand to testify upon that question by appellee. The substance of all that is material of his testimony, as we read it from the record, is as follows: The contract with Kimberly was made the latter part of March or the first part of April, 1901. The property contracted for by Kimberly was the stock of the Golden Star Mining Company, consisting of about 156,000 shares, and the price to be paid was $200,000. When interrogated as to how the payment was to be made, the witness answered: ‘In payments. It ran along. There was $5,000 paid down and the balance was to be paid. The next payment, I think, was 90 days & six months.’ The payments were to be made at McCormick's Bank in Salt Lake City. In answer to the question whether appellant could remember the substance of any other provisions of the contract, he stated: ‘That was the substance; that was the consideration, and the payments were to be made as I have stated-strung along, sixty, ninety days, six months to a year; but, there was only one payment made-that first payment.’ On behalf of himself appellant testified that he entered into a contract with Kimberly after he met appellee, but that the terms of the contract were not carried out; that $5,000 was paid in cash in Salt Lake City at the McCormick Bank, where the shares of stock were held in escrow. He testified no further payments were made, and that the $5,000 paid was forfeited ‘under the terms of the contract.’ We find nothing further in the testimony purporting to give the terms of the contract between appellant and Kimberly, but in his testimony appellant called it an option contract. The terms of the agreement, so far as disclosed by the evidence, do not show that it was an option contract. On the contrary, the transaction appears to have been an unconditional sale.

Appellant insists that by the terms of the agreement for commissions, as testified to by appellee, he was to effect a sale, and that he was to be paid $4,000 if the deal went through, and that this bound him to produce a purchaser who not only entered into a contract to purchase, but the contract must have been complied with and the money paid for the property. If a valid, enforceable contract was made, this constituted a sale, and was...