Dickerson Realtors, Inc. v. Frewert

• Decision Date: 23 January 1974
• Docket Number: No. 72--276,72--276
• Citation: 16 Ill.App.3d 1060,307 N.E.2d 445
• Parties: DICKERSON REALTORS, INC., an Illinois corporation, Plaintiff-Appellant, v. William H. FREWERT and Dorothy L. Frewert, husband and wife, Defendants- Appellees.
• Court: United States Appellate Court of Illinois

Page 445

307 N.E.2d 445

16 Ill.App.3d 1060

DICKERSON REALTORS, INC., an Illinois corporation, Plaintiff-Appellant, v. William H. FREWERT and Dorothy L. Frewert, husband and wife Defendants- Appellees.

No. 72--276.

Appellate Court of Illinois, Second District Jan. 23, 1974.

Rehearing Denied March 13, 1974.

The only question presented by this appeal is whether the trial court's decision is against the manifest weight of the evidence. Plaintiff contends that the evidence established that there was an implied contract of employment between the parties.

The defendants owned a home in Rockford which they had been trying to sell, first with a listing through another broker at $44,700, and then after that listing expired in December of 1970, by themselves. On April 21, 1971, Mrs. Jan Carlson, a real estate sales woman employed by the plaintiff, telephoned defendants' home and (in Mr. Frewert's absence) secured Mrs. Frewert's permission to show the house to prospective buyers, the Coopers, at 2:00 p.m. on that day. After going through the house, the Coopers, at plaintiff's office, signed an offer to the defendants to buy their home for $42,500, subject to obtaining a $9,500 mortgage at 7% Due in 15 years; closing and possession were set for June 15, 1971. Mrs. Carlson then telephoned defendants' home, told Mrs. Frewert she had an offer, and arranged to see her between 3:00 and 4:00 p.m., with Mr. Dickerson, an official of the plaintiff. During that visit, Mrs. Frewert told them that she could not reach her husband until that evening at his parents' home in the Chicago area. They arranged for Mrs. Carlson to come over again in the evening to telephone him. Mrs. Carlson did so, charging the toll call to plaintiff's phone, and read the offer of $42,500 to Mr. Frewert. During that telephone conversation Mr. Frewert told her that he would not consider less than '$40,500 net' to him. When Mrs. Carlson told him she was representing him, Mr. Frewert testified he said to her that in that case 'she should consider adjusting the commission so I would net what I would indicate was my bottom dollar.' Mr. Frewert further suggested that in view of the fact that his children were still in school, and since he didn't know where he was going to move, he would like the contract to provide for an additional 30 day possession, at a rental of $30 for each day, not to exceed 30 days, suggesting that this would provide an incentive and make it more appealing to the prospective buyers and help to defray the expenses of their staying in a motel and storing their furniture during such period.

Mrs. Carlson discussed with Mr. Dickerson the question of cutting the commission and was told by him it was against company policy. That evening Mrs. Carlson negotiated further with the Coopers, telling them what the defendants wanted and that the offer would have to be $43,550. She prepared such an offer, subject to the buyer obtaining a mortgage loan of $10,000 due in 10 years with 7% Interest, closing and possession to be June 15, and with the proviso suggested by Mr. Frewert for a $30 a day rental for the period not exceeding 30 days from June 15, 1971. The Coopers told her their limit was $43,000 and the offer was accordingly amended, signed by the Coopers and accompanied by their $1,000 check payable to the plaintiff as an earnest money deposit.

At 10:30 p.m., April 21, Mrs. Carlson telephoned Mr. Frewert again about the second offer from the Coopers. Mrs. Carlson testified that Mr. Frewert told her 'he wouldn't make any decision' and remarked that his wife was coming to Chicago the next morning to look at houses with him. Mrs. Carlson then told him she would deliver the papers to Mrs. Frewert at the bus depot in the morning so 'she could take them into Chicago.' Mr. Frewert testified that in that conversation Mrs. Carlson said she was aware that Mrs. Frewert was going to Chicago the next day to meet him and asked whether she could deliver the second offer to his wife; that he told her 'she could do anything she liked, but as far as I was concerned the matter was at an end . . .'.

The next morning, April 22, Mrs. Carlson met Mrs. Frewert at the bus depot, handed her the Coopers' second offer, the check and a completed sales agency contract for defendants' signatures, and when Mrs. Frewert told her she would be back in Rockford about 6:00 p.m., Mrs. Carlson asked that defendants call her if they made a decision during the day.

While in Chicago on April 22, the defendants made an offer on a residence in that area which was accepted. Mr. Frewert inquired of Mrs. Frewert where Cooper worked, located him, telephoned him direct in Rockford, and during that conversation agreed to sell their Rockford house to the Coopers for $41,500 cash without contingencies and with possession on June 15. The written offer was executed by the Coopers and defendants under date of April 24, 1971, and contained an agreement by defendants to indemnify the Coopers against any liability for real estate commission.

Mrs. Carlson, who did not know of that development, telephoned the Frewert home about 8:15 p.m. on the 22nd and was told by Mrs. Frewert that her husband would telephone Mrs. Carlson at her office at 9:00 p.m. Mr. Frewert did so and in that conversation told Mrs. Carlson he did not want to deal with a realtor...