Chicago Title & Trust Co. v. De Lasaux

• Citation: 336 Ill. 522,168 N.E. 640
• Decision Date: 04 December 1929
• Docket Number: No. 19111.,19111.
• Court: Supreme Court of Illinois
• Parties: CHICAGO TITLE & TRUST CO. v. DE LASAUX et al. DE LASAUX v. CHICAGO TITLE & TRUST COMPANY et al.

336 Ill. 522

168 N.E. 640

CHICAGO TITLE & TRUST CO.

v.DE LASAUX et al.

DE LASAUX

v.CHICAGO TITLE & TRUST COMPANY et al.

No. 19111.

Supreme Court of Illinois.

Oct. 19, 1929.

Rehearing Denied Dec. 4, 1929.

Commissioner's Opinion.

Error to First Branch Appellate Court, First District, on Appeal from the Superior Court, Cook County; Denis E. Sullivan, Judge.

Bill of interpleader by the Chicago Title & Trust Company against Georgiana De Lasaux and others, to determine the ownership of $1,000 held by it. Decree granting $150 to the Chicago Title & Trust Company and $850 to F. W. Harsh, Jr., was affirmed by the Appellate Court, and Georgiana De Lasaux brings certiorari.

Affirmed.Harry W. Standidge, of Chicago, for plaintiff in error.

Sherman C. Spitzer and Edmund J. Reynolds, both of Chicago, for defendant in error Chicago Title & Trust Co.

Tyler, Dotson, Geter & Lorick, of Chicago, for defendant in error Harsh.

PARTLOW, C.

The Chicago Title & Trust Company filed its bill of interpleader in the superior court of Cook county against Charles M. Whitehead, George Young, Blanche Woodward, Georgiana De Lasaux, and F. W. Harsh, Jr., to determine the ownership of $1,000 held by it. Answers were filed by the defendants, and the cause was referred to a master to take the evidence and report his conclusions. The master found that the Chicago Title & Trust Company was entitledto $150 as its costs and charges, and that $850 should be paid to Harsh as his commission for the sale of the real estate in question. Exceptions to the report were overruled, a decree was entered as recommended, an appeal was prosecuted to the Appellate Court for the First District by Mrs. De Lasaux, where the decree was affirmed, and the case is brought to this court by Mrs. De Lasaux upon a writ of certiorari. $The evidence shows that Georgiana De Lasaux was the owner of cetain real estate in Chicago, which she placed in the hands of Blanche Woodward, her attorney in fact, for sale. On November 19, 1924, Mrs. De Lasaux and Edward De Lasaux, her husband, by Mrs. Woodward, their attorney in fact, entered into a written contract to sell the real estate to T. C. Windham for $36,000, of which $1,000 was paid in cash as earnest money, $12,000 was to be paid when the transfer was completed, there was to be a first mortgage for $13,000 and a second mortgage for $10,000. The contract provided that, if the purchaser failed to perform the contract at the time and in the manner specified, the earnest money should, at the option of the vendor, be retained as liquidated damages and the contract canceled; that the contract and earnest money should be held by the Chicago Title & Trust Company for the mutual benefit of the parties concerned; that it should be the duty of the trust company, in case the earnest money was forfeited, to apply it to the payment of any expenses incurred for the vendor, and to pay the balance to the vendor as liquidated damages. It also provided that a broker's commission of 3 per cent. of the sale price was to be paid to Harsh, and that the vendor was not to be liable for any commission, unless the deal was closed in accordance with the terms of the contract.

On November 20, 1924, the contract and the $1,000 were delivered to the trust company, and a written agreement was entered into between Mrs. Woodward and Harsh, which providedthat the contract and money were to be delivered and paid out only upon their joint order; that in case any suit or proceeding regarding the property was filed to which the trust company was a party, it should have a lien for all costs, attorney's fees and expenses, and it should be reimbursed out of the deposit. The deal was closed, and the purchase money paid to the vendor, except the $1,000, which remained with the trust company, and on account of which this bill of interpleader was filed. Harsh brought suit in the municipal court of Chicago against Mrs. Woodward, the attorney in fact, claiming 3 per cent. of the purchase price, or $1,080, for his commission. He obtained a judgment by default against her and summoned the trust company as garnishee. Upon a hearing the garnishee was discharged. The vendor paid to Whitehead $250, which he claimed as part commission due him for the sale of the property, and he and Young claimed that more money was due them. The bill prayed that the defendants be enjoined from prosecuting against complainant any action at law or in equity with reference to the fund, and that Harsh be enjoined from further prosecuting garnishee proceedings in the municipal court on said judgment.

The decree, after reciting the facts substantially as above set forth, found that the $1,000 was paid by a check to Harsh, which he indorsed to the Chicago Title & Trust Company; that this amount was earnest money, and was a part of the purchase price of the property, and at the time it was paid it was the property of Georgiana De Lasaux; that Harsh was present at the time the contract of sale was executed and knew all of the facts; that he procured the purchaser, the contract was signed solely through his efforts, and that he was entitled to a commission on the sale. It was decreed that the trust company was entitled to retain $150 as its expenses and costs; that Harsh was entitled to $850, and upon the payment of that amount to him the trust company was to be relieved from further liability as to the fund; that defendants be enjoined from prosecuting any suit at law or in equity against the trust company in regard to the fund, from prosecuting against the trust company and Blanche Woodward the action in the municipal court brought by Harsh, and from instituting or prosecuting any writ of attachment, garnishment, writ of error, or appeal from any judgment or order entered in said cause in the municipal court against the trust company and Mrs. Woodward.

Plaintiff in error, Georgiana De Lasaux, insists that the decree should be reversed because defendant in error Harsh, by bringing suit in the municipal court against Blanche Woodward, conclusively elected to hold her solely liable for the payment of the commission, and he cannot in this proceeding hold plaintiff in error for its payment. In support of this contention cases are cited which are not applicable to the facts here presented. The doctrine of election is based upon the assumption that two or more inconsistent and alternative remedies exist, and when a party selects one of these remedies he is precluded from prosecuting any other. Bradner Smith & Co. v. Williams, 178 Ill. 420, 53 N. E. 358.

Harsh did not have two or more inconsistent remedies. He and one of his salesmen were the only witnesses who testified in this case, and their evidence was limited to what was done in making the sale. Most of the other facts were stipulated; consequently there is very little, if any, conflict in the evidence. The evidence is that Harsh made the sale and was entitled to the commission. At the time he made it he knew the plaintiff in error was...