Blake v. Mcmullen

• Decision Date: 30 September 1878
• Parties: FRANCIS W. BLAKEv.JEROME MCMULLEN.
• Court: Illinois Supreme Court

91 Ill. 32

1878 WL 10223 (Ill.)

FRANCIS W. BLAKE

v.JEROME MCMULLEN.

Supreme Court of Illinois.

September Term, 1878.

APPEAL from the Circuit Court of Cook county; the Hon. W. K. MCALLISTER, Judge, presiding.

Mr. J. W. BENNETT, for the appellant.

Mr. M. L. KNIGHT, for the appellee. Mr. JUSTICE WALKER delivered the opinion of the Court:

In this case it is claimed that the finding is so clearly against the weight of evidence that the judgment of the court below should be reversed.

It appears that appellee had in his hands some property of Jenkins to exchange for other property, for which, if he succeeded, he was to have a commission. He wrote appellant that he could exchange his property, which was worth something more than $4000, but it was incumbered by a mortgage of $2300, leaving it worth not more than $2000 over the incumbrance. Appellant saw appellee, and afterwards saw Jenkins, who showed him the property, and the exchange was made, appellant receiving unincumbered property, and Jenkins receiving his subject to the incumbrance.

When the trade was consummated, the question arose between appellee and appellant as to the commission the former should have, he claiming $129, or three per cent on $4300, the full value of appellant's property unincumbered. Appellant claimed that appellee had agreed to charge no more than two and a half per cent, and that he would collect one-half of Jenkins. Appellee claims it was to be three per cent from appellant, and that when he wrote him that he could exchange his for other property, he so informed him. Appellee says he told appellant, before the trade, that he had written him his commissions would be three per cent, and appellant replied he would pay what was right, from which he understood it was to be three per cent; that when the transaction was closed, and he informed him that $129 was his charge, appellant did not dispute its correctness; that he did not object to the amount of the charge on other occasions when the matter was spoken of between them. To this he swore on the trial.

Jenkins testified that he was to pay three per cent and understood appellant was to pay the same. But appellant thought it was too much. Keys says he heard, before the trade, some talk that both parties were to pay three per cent commission, and thinks appellee was present. This is all the corroborating evidence introduced by appellee.

Appellant testified that appellee wanted three per cent, but he told him he would not pay that amount; that appellee then said, this was an exchange of property and he would do it for two and a half per cent and get half of that of Jenkins. He made the proposition and appellant accepted it, which made one and a quarter per cent for him to pay, and that agreement was never changed.

Long testified that appellee thought he ought to get three per cent, but Neff said he would not pay it, and appellee then said he would charge but two and a half per cent, and only charge Blake half of that and get the other half from Jenkins; that appellee told witness he would charge two and a half per cent, and Blake...