Hufford v. Balk

• Decision Date: 06 June 1986
• Docket Number: No. 62107,62107
• Citation: 113 Ill.2d 168,100 Ill.Dec. 564,497 N.E.2d 742
• Parties: , 100 Ill.Dec. 564 Eugene HUFFORD, Appellee, v. Harlan G. BALK, Appellant.
• Court: Illinois Supreme Court

Page 742

497 N.E.2d 742

113 Ill.2d 168, 100 Ill.Dec. 564

Eugene HUFFORD, Appellee, v. Harlan G. BALK, Appellant.

No. 62107.

Supreme Court of Illinois.

June 6, 1986.

Rehearing Denied Sept. 26, 1986.

Pollock, Ennis & Heck, Quincy, for appellee.

Costello, Long, Young & Dvorak, Ltd., Springfield, for appellant; Verne H. Evans, of counsel.

Justice GOLDENHERSH delivered the opinion of the court:

Defendant, Harlan G. Balk, appealed from the judgment of the circuit court of Adams County entered, following a bench trial, in favor of plaintiff, Eugene Hufford. In a Rule 23 order (87 Ill.2d R. 23; 131 Ill.App.3d 1172, 98 Ill.Dec. 205, 493 N.E. 1226), a divided appellate court affirmed in part, reversed in part, and modified the judgment, resulting in a substantial reduction in the amount awarded. We allowed plaintiff's petition for leave to appeal (103 Ill.2d R. 315).

Plaintiff, a real estate broker, entered into a contract with defendant for the listing and sale of two nursing homes. The agreement, in pertinent part, provided:

"I hereby appoint Hufford Real Estate as my exclusive agent, granting permission for 90 days * * *.

Selling Price 3,000,000.00 or any lesser price I agree to accept.

If Hufford Real Estate is successful in obtaining a ready, willing and able Buyer, or if said property is sold, contracted, leased, or rented, or traded by me or any other person during the listing period, I will pay Hufford Real Estate a 6% commission on the total selling or exchange price. This commission shall be lien on the property and on earnest money until paid. Minimum commission $1000.00."

The expiration date was extended, and during the extended period the nursing homes were leased by defendant to David Van Dyke for terms of five years with gross rentals of $745,000 for one nursing home, and $900,000 for the other.

The circuit court made specific findings of fact that the parties entered into the agreement, that while it was in force the nursing homes were leased, that the agreement "creates in plaintiff an exclusive right to sell the real estate and creates a right to a commission 'if said property is sold, contracted, leased, or rented or traded' during the listing period." The court further found that plaintiff was entitled to a commission of 6% of the total rents provided in the two leases and entered judgment for plaintiff in the sum of $98,733.60, 6% of the total rentals for the full terms of the leases.

In reviewing the evidence the appellate court said:

"Plaintiff testified that he made over 100 contacts with prospective buyers in attempting to sell the properties; one of these was David Van Dyke. Nothing immediate came of the contact, but plaintiff further testified that defendant told him that he would like to get Van Dyke into a permanent lease agreement. Plaintiff stated that he recommended against leasing, but in the event leases were obtained, he would want a 10% commission. On December 7 or 12, 1980, plaintiff learned that the properties had been leased when he saw an advertisement in a local newspaper. Van Dyke testified by deposition that he signed leases on the properties on December 15, 1980. He further testified that he never discussed sale or lease of the properties with plaintiff; that he knew plaintiff was acting as broker for defendant when he first viewed the properties, but was not aware of any broker being involved when he signed the leases.

Defendant's testimony was quite contrary. He claimed that the leases were executed on December 30, 1980, some nine days after the expiration of the listing agreement. He conceded, however, that he began receiving rent from Van Dyke on December 15. He acknowledged that he had recently been convicted of income tax evasion."

The appellate court held that the language of the agreement did not provide for a commission in the event that the...