Haas v. Cohen

• Decision Date: 10 April 1973
• Docket Number: No. 72--271,72--271
• Citation: 10 Ill.App.3d 896,295 N.E.2d 28
• Parties: Robert D. HAAS and John M. Hodges, doing business as Haas and Hodges Real Estate Agency,Plaintiffs-Appellants, v. Avie E. COHEN and Robert E. Muzzy, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 28

295 N.E.2d 28

10 Ill.App.3d 896

Robert D. HAAS and John M. Hodges, doing business as Haas and Hodges Real Estate Agency,Plaintiffs-Appellants, v. Avie E. COHEN and Robert E. Muzzy, Defendants-Appellees.

No. 72--271.

Appellate Court of Illinois, Third District.

April 10, 1973.

Harold H. Kuhfuss, Pekin, for plaintiffs-appellants.

Dorthea O'Dean, Counsel, Rock Island, Joseph J. Solls, Sidney D. Davidson, John F. Sloan, Peoria, for defendants-appellees.

STOUDER, Justice.

This is an appeal from a judgment entered by the Circuit Court of Tazewell County in favor of the defendants, denying to the plaintiffs a recovery of a commission for selling real estate. The defendants, Avie Cohen and Robert Muzzy, each owned an interest in certain real estate located in Pekin, Illinois on which they built an apartment house in 1967. Haas & Hodges Real Estate Agency operated by the plaintiffs, Robert Haas and John Hodges, appellants, had engaged in activity in respect to the property since 1967, both as a rental agency for the leasing of the apartment and as a broker to sell the real estate.

Cohen, who lived in Peoria, did business both in Peoria and in Pekin, while Muzzy lived in Wheaton and only visited Pekin occasionally. Cohen had handled all matters concerning the construction, the leasing and the negotiations for the sale of the property. In 1967, soon after the apartment house was built, Cohen first signed a listing agreement with the plaintiffs' agency, which Muzzy did not sign although he did have knowledge of it. Three years later in 1970, the listing contract in issue in this case was signed by the plaintiffs' agent, Mayhugh, and by the defendant, Cohen. The real estate agency agreed to try to find a purchaser for a price of $236,000 with a commission of $16,000 to be paid to the plaintiffs upon consummation of the sale. The following month a prospective buyer, Robert Fuller, who was procured by the plaintiffs, offered to buy the real estate and a detailed offer to purchase signed by Fuller was submitted to Cohen and accepted by Cohen by placing his signature thereon. The defendant Muzzy had not signed the listing contract or the offer to purchase. When the deal was ready to be closed, Cohen and Muzzy refused to perform. The defendants urged that both the listing contract and the offer to purchase were subject to a condition precedent and unenforceable.

At the trial Cohen testified that both the listing contract and the offer to purchase were 'subject to Muzzy's signature' and that he had only signed in his own behalf. The plaintiffs' agent, Mayhugh, and Hodges, one of the plaintiffs, testified that nothing had been said about obtaining Muzzy's signature at the time Cohen signed the agreements. Muzzy denied having given any authorization to Cohen to act as his agent in the sale of the property, although he did admit knowledge that Cohen had listed the property with Haas and Hodges.

The defense of a conditional execution was supported by Cohen's testimony, to which the plaintiffs objected at the trial. Ordinarily parol evidence is not admissible to vary, alter or contradict the terms of a written contract, which also would include a situation where a condition which is not provided for in the contract is imposed by parol. (Green v. Ashland Sixty Third Bank, 346 Ill. 174, 178 N.E. 468). If, however, parol evidence is offered to show that a contract was intended to take effect only upon compliance with a certain condition it is admissible. (Kilcoin v. Ortell, 302 Ill. 531, 135 N.E. 16). According to Kilcoin, the rule is that possession of a document unconditional by its terms by a party seeking to enforce an agreement is presumptive evidence, although not conclusive, that the agreement is binding and in full force and effect according to its terms. The strength of such a presumption is enhanced and may not be lightly disregarded where, as in the instant case, the alleged condition could have been easily included as a term of the document and the failure to do so is unexplained. Cohen had alleged in the pleadings that the contract was conditioned upon Muzzy's signature. Evidence that there was a condition precedent to the existence of the contract is admissible. It was, therefore, proper for the trial judge to admit evidence of the condition offered by Cohen.

It is well settled that a party asserting a fact or issue generally has the burden of proof as to such fact or issue. (Noyes et al. v. Gold, 310 Ill.App. 1, 34 N.E.2d 1). The condition affirmatively alleged by Cohen in his answer was not part of the written agreement nor was there any evidence of the condition except for Cohen's testimony. Those present at the signing denied the existence of a condition or even any discussion of one. Cohen alone had been in charge of the entire operation since 1967, which included the construction, leasing, and the listing of the property for sale. Throughout the plaintiffs' entire course of dealings with the property it was only Cohen who had dealt directly with the plaintiffs, and he had also held himself out to the plaintiffs to be in charge of the property. Cohen admitted that he alone signed previous listing agreements prior to his signing of this listing agreement and that such agreements were not conditioned upon Muzzy's joinder. The new listing agreement changed the purchase...