Duffy v. Setchell

• Decision Date: 13 May 1976
• Docket Number: Nos. 75--168 and 75--169,s. 75--168 and 75--169
• Citation: 347 N.E.2d 218,38 Ill.App.3d 146
• Parties: F. E. DUFFY et al., Plaintiffs-Appellees, v. Jacque SETCHELL et al., Defendants-Appellants, v. Charles F. BROWN, d/b/a Charles F. Brown Real Estate Agency, Third-party Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 218

347 N.E.2d 218

38 Ill.App.3d 146

F. E. DUFFY et al., Plaintiffs-Appellees, v. Jacque SETCHELL et al., Defendants-Appellants, v. Charles F. BROWN, d/b/a Charles F. Brown Real Estate Agency,

Third-party Defendant-Appellant.

Nos. 75--168 and 75--169.

Appellate Court of Illinois, Second District, Second Division.

May 13, 1976.

Dixon, Devine, Ray & Morin, Henry S. Dixon, Dixon, Christ T. Troupis, Mendota, for defendants-appellants.

E. M. Sullivan, Amboy, Craig E. McGuire, Polo, for plaintiffs-appellees.

DIXON, Justice:

F. E. Duffy brought suit in the Circuit Court of Lee County, Illinois, against Jacque Setchell for a real estate broker's commission. Duffy alleged that he had a listing contract with Setchell which gave him an exclusive right to sell Setchell's farm, and that a sale had been made by Setchell through another broker, Charles F. Brown. Setchell in his reply denied that Duffy was entitled to a commission, and alleged that the contract of sale procured through Brown was voidable and had been rescinded. Setchell filed a third-party complaint against Brown, alleging that no valid sale of his farm had been made, and he was not liable to either Duffy or Brown for a commission, because Brown had acted as dual agent for buyer and seller. Lois D. White, with whom Setchell and his wife had entered into the challenged contract for the procuring of which the two brokers both wanted fees, brought suit against the Setchells for specific performance. The cases were consolidated for trial, and a bench trial ensued. After hearing testimony, the trial court granted Duffy his commission, denied a commission to Brown, and decreed specific performance of White's contract. Brown and the Setchells have appealed.

White was the owner of a farm which adjoined the Setchells' farm. White's nephew was the tenant on her farm. In the fall of 1972 White talked with her nephew about the possibility of her purchasing another farm in the area. At Christmas time in 1972 they again discussed the possibility of her buying another farm, and the Setchells' farm was mentioned. White's nephew told her he knew a realtor named Charlie Brown. White asked her nephew to get in contact with Brown and ask him to look into the possibility of her purchasing the Setchells' farm.

White's nephew called Brown, and shortly afterwards the two of them went to see White at her home, in January of 1973. They discussed the terms on which a purchase of the Setchells' farm might be arranged. Brown said he had already gone to see Mr. Setchell, after hearing from the nephew, but he did not indicate in any way that he represented the Setchells. White asked Brown to get in touch with the Setchells on her behalf, to see about her buying the land. She told Brown she would pay $800 an acre, but did not think she had made the price definite. She considered that Brown was her agent to go to talk to the Setchells. 'Through Mr. Brown,' she subsequently testified, 'I was going to Mr. Setchell.'

Brown thereafter went to see the Setchells a number of times to discuss the sale of their farm, and also kept in touch with White. The Setchells and White did not deal with each other directly. Brown had White sign a proposed contract, dated February 5, 1973, and he took it to the Setchells but did not show it to them because their thinking on the terms of sale had changed. Brown did not tell the Setchells that he had come to them pursuant to the suggestion of White's nephew, or disclose that it was White who was interested in buying their farm. Brown did not mention White's name to the Setchells until February 17, 1973, when the contract in its final form was ready for execution, because he did not until then have their signature on a listing agreement.

Brown obtained the agreement of the Setchells to reduce their price from $100,000 to $98,000, which for approximately 124 acres was $790.32 per acre. The time of closing was also deferred one year, to March 1, 1974, the Setchells to have the crops and the use of the land for the additional year. These changes he discussed with White, and she agreed to the later closing date. White signed the contract as it was prepared in its final form, on February 17, 1973, and gave Brown her check for the down payment, $7,500. Brown then met the Setchells at his office, had them execute the contract, and gave them White's check.

Brown also told the Setchells, in the course of the negotiations, that he would try to find another farm for them to acquire, so the disposition of their farm for tax purposes could be made to assume the form of an exchange rather than a sale. The contract in its final form allowed this to be done, requiring the cooperation of White but imposing any extra legal or closing costs on the Setchells. Brown also said the deal wasn't good until the check for the down payment was cashed, although he did not direct them to hold the check until exchange property was found.

In 1971, long before Brown went to see the Setchells to discuss the sale of their farm, Mr. Setchell had executed a listing agreement with Duffy. This expired, and was renewed January 15, 1973. It was an exclusive listing agreement, giving Duffy the exclusive right to sell the listed property. Duffy heard on February 3, 1973, that White was interested in buying a farm, and called White on February 4 for an appointment for the next day. Later on February 4 a message was left for Duffy cancelling the appointment. Duffy called...