David v. J. Elrod Realtors on Devon, Inc.
| Decision Date | 20 August 1979 |
| Docket Number | No. 78-1650,78-1650 |
| Citation | 394 N.E.2d 583,31 Ill.Dec. 381,75 Ill.App.3d 449 |
| Parties | , 31 Ill.Dec. 381 Ted A. DAVID and Fe C. David, Plaintiffs-Appellants, v. J. ELROD REALTORS ON DEVON, INC., a corporation and Phillip M. Lang, Individually and d/b/a J. Elrod Realtors on Devon, Inc., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Renato Amponin and Thomas M. Knepper, Chicago (Abramson & Fox, Chicago, of counsel), for plaintiffs-appellants.
Michael Pekay, Chicago, for defendants-appellees.
This is an appeal by the plaintiffs, Ted A. David and his wife, Fe C. David, from orders of the circuit court of Cook County granting the defendants' motion for judgment on the pleadings and denying the plaintiffs' alternative motions for judgment on the pleadings or summary judgment. The action was instituted by the plaintiffs to recover earnest money which they had deposited in escrow with the defendants, J. Elrod Realtors on Devon, Inc. and Phillip M. Lang. The defendants' motion for judgment on the pleadings was granted on the basis that the plaintiffs had breached their real estate sales contract with the sellers to purchase certain real property thereby entitling the defendants to retain a portion of the plaintiffs' earnest money as a commission pursuant to the terms of the said contract. For the reasons hereinafter stated we reverse and remand. The pertinent facts follow.
On February 23, 1976, Robert and Lorraine Alawerdy (hereinafter sellers), employed the defendants-real estate brokers, pursuant to the terms of an exclusive listing agreement, to secure a buyer for certain real property located in Chicago, Illinois. Under the agreement the sellers promised to pay to the defendants a brokers commission amounting to 6% Of the selling price.
On April 26, 1976, the plaintiffs-buyers entered into a sales contract with the sellers to buy the aforementioned real property. The contract was executed on a form provided by the defendants and provided for the defendants to act as broker and escrowee. Pursuant to said contract the plaintiffs deposited $3,600 in escrow with the defendants. The contract also obligated the plaintiffs to obtain a commitment for a mortgage loan within 21 days after the date of the contract.
Thereafter, the plaintiffs assert and the defendants admit in their answer that the plaintiffs made their best efforts to secure a mortgage loan commitment in accordance with the terms of the contract. On or about May 24, 1976, the plaintiffs received a tentative approval for a mortgage loan commitment from Guardian Savings and Loan Association. Sometime between July 15, 1976 and July 22, 1976 Guardian withdrew its approval of the plaintiffs' loan on account of certain sales tax liens appearing in the preliminary title report against the plaintiffs. In the stipulation of facts between the parties the defendants agreed that the failure of the plaintiffs to disclose the existence of these liens on their loan application was neither fraudulent nor wilful. The plaintiffs duly informed the sellers of the withdrawal of the mortgage commitment and neither the defendants nor the sellers were able to procure a mortgage for the plaintiffs. The plaintiffs were also unable to purchase the property without mortgage financing.
Upon the withdrawal of the mortgage loan commitment, the same having occurred more than 21 days after the date fixed in the contract for obtaining a mortgage, the sellers elected to treat the contract as null and void and notified the plaintiffs accordingly. On November 19, 1976, the sellers directed the defendants to return the $3,600 escrow deposit to the plaintiffs. On December 23, 1976, the defendants paid to the plaintiffs the sum of $1,450. The defendants retained the sum of $2,150, which represented the earnest money deposited, less the commission that would have been earned on account of the alleged default by the plaintiffs for having failed to obtain a mortgage commitment within 21 days as provided for in the sales agreement.
The plaintiffs-buyers instituted this action to recover from the defendants-brokers that portion of the earnest money which was retained by the defendants as a brokers commission. The sellers are not parties to this proceeding. The trial court denied the plaintiffs' alternative motions for judgment on the pleadings or summary judgment on April 13, 1978. On June 30, 1978 the trial court granted the defendants' motion for judgment on the pleadings and denied the plaintiffs' motion for a rehearing. It is from these orders that the plaintiffs bring the instant appeal.
Our initial inquiry must be whether the defendants were entitled to judgment on the pleadings as a matter of law. "Granting judgment on the pleadings is proper only where the court can determine the relative rights of the parties solely from the language of the pleadings." (August H. Skoglund Co. v. Dept. of Transportation (1978), 67 Ill.App.3d 276, 279, 23 Ill.Dec. 942, 945, 384 N.E.2d 849, 852; accord Johnson v. City of Evanston (1976), 39 Ill. App.3d 419, 350 N.E.2d 70.) This motion requires an examination of the pleadings to determine if there is an issue of fact or if the controversy can be resolved solely as a matter of law. (Affiliated Realty and Mortgage Co. v. Jursich (1...
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...N.E.2d 1174; Hartlett v. Dahn (1981), 94 Ill.App.3d 1, 3, 49 Ill.Dec. 400, 418 N.E.2d 44; David v. J. Elrod Realtors on Devon, Inc. (1979), 75 Ill.App.3d 449, 451, 31 Ill.Dec. 381, 394 N.E.2d 583; see also Carebuilt Corp. v. Horsting (1963), 40 Ill.App.2d 280, 189 N.E.2d 364; Milanko v. Jen......
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E.B. Harper & Co., Inc. v. Nortek, Inc.
...cannot claim to be owed the specific duties recited in the Pozzi-Nortek contract. See David v. J. Elrod Realtors on Devon, Inc., 75 Ill.App.3d 449, 31 Ill.Dec. 381, 383, 394 N.E.2d 583, 585 (1979). Harper was owed the implied, noncontractual duties of "reasonable efforts" and "good faith." ......
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