Hunter v. Von Bronk

• Decision Date: 06 February 1929
• Docket Number: No. 18443.,18443.
• Citation: 333 Ill. 321,164 N.E. 671
• Parties: HUNTER v. VON BRONK et al.
• Court: Illinois Supreme Court

333 Ill. 321

164 N.E. 671

HUNTER

v.VON BRONK et al.

No. 18443.

Supreme Court of Illinois.

Dec. 20, 1928.

As Modified on Denial of Rehearing Feb. 6, 1929.

Commissioner's Opinion.

Bill by Arthur M. Hunter against Felix Von Bronk, Edward H. Oldenburger, and Roy C. Merrick, in which two last-named defendants filed a cross-bill. From the decree, two last-named defendants appeal.

Affirmed.

Appeal from Circuit Court, Cook County; Francis S. Wilson, judge.

Lewis F. Jacobson, Roy C. Merrick, Cameron Latter, and Sidney C. Nierman, all of Chicago, for appellants.

Charles Hudson and Harvey T. Fletcher, both of Chicago, for appellee.

PARTLOW, C.

Appellee, Arthur M. Hunter, filed his bill in the circuit court of Cook county against Felix Von Bronk, Edward H. Oldenburger, and Roy C. Merrick for the specific performance of a contract for the sale of real estate between Von Bronk and appellee, and to set aside certain deeds from Von Bronk to Oldenburger and Merrick. Answers were filed, and Oldenburger and Merrick filed a cross-bill to cancel the contract as a cloud upon their title. The cause was heard by the chancellor in open court, a decree was entered granting the relief prayed in the original bill, and an appeal has been prosecuted to this court by Oldenburger and Merrick.

Von Bronk was the owner of two vacant lots in Chicago, subject to tax sales and liens of about $1,500, in addition to a special assessment of $700. On October 17, 1925, he entered into a sealed contract with appellee which was on a printed form, and which provided that, in consideration of $1, the receipt of which was acknowledged, he gave to appellee the exclusive right to sell the property for a period of six months, and from month to month thereafter upon the payment of $3 per month for each additional month for not to exceed twelve months. The seller was to convey by quitclaim deed for $200 or any less sum which the seller might agree to accept, subject to unpaid taxes and incumbrances. The printed from contained a provision for the payment of a commission to appellee, but this was erased before the contract was signed. The consideration was first stated at $150, but this was erased and $200 substituted before the contract was signed. The contract provided that ‘you [appellee] to have the privilege of purchasing this property during said period if you so desire. Title to be taken in your name or in the name of anyone you may designate.’ The seller agreed to furnish at his own expense an abstract of title showing a merchantable title in him brought down to the date of the sale. All taxes, special assessments, and general expenses on the property falling due subsequent to the date of the contract were to be added to the purchase price. Appellee was to advertise and show the property without any expense to the owner. The contract was filed for record on October 23, 1925. On November 14, 1925, Von Bronk and wife, for a consideration of $250, conveyed to Oldenburger, who was a real estate broker doing business for Von Bronk, and, on November 16, 1925, Oldenburger for $125 conveyed a one-half interest to Merrick, who was the attorney for Von Bronk and Oldenburger. On December 21, 1925, appellee tendered to Von Bronk the $200, and demanded a deed. Von Bronk refused to convey, and this suit was begun.

Appellants insist that the contract is vicious and contrary to equitable principles; that it gave appellee the exclusive right to sell, and he was to advertise and show the property at his own expense; that these provisions clearly indicated that appellee was the agent for Von Bronk in the sale of the property; that it also gave appellee the right to purchase in his own name; that these provisions place him in the dual and alternate role, first, of an agent, where he was bound to exercise the highest diligence and integrity towards his principal, and second, he had the right to buy, and he would be impelled by self-interest to discourage and defeat a sale to others; that these provisions are inconsistent and contrary to equitable principles; that all appellee wanted was to get a contract which would enable him to keep prospective buyers away until he could speculate on a profitable sale; that he does not come into court with clean hands, for the reason that he saw the newly created value of a hitherto obscure and cheap property, and on Sunday took a prospective buyer to see the property; that he then went to the owner's home, and procured a contract in which the owner was assured that the property would be advertised and shown; that appellee placed the contract on record so as to drive away prospective buyers and depress the price; that he tried to sell, and finally demanded a deed to himself-all of which shows a course of underhanded dealing which is fitly crowned by the effrontery of filing a bill for specific performance-that there was no evidence of a consideration for the contract.

The contract is not subject to the interpretations sought to be placed upon it by appellants, and the contentions made are not sustained by the evidence. The rule is that an agent cannot act for both parties, whose interests are adverse, without the knowledge and consent of both. Bunn v. Keach, 214 Ill. 259, 73 N. E. 419. He is prohibited from having any interest, directly or indirectly, in the sale without the consent of his principal. Johnson v. Bernard, 323 Ill. 527, 154 N. E. 444. Contracts are common where the owner places his property in the hands of an agent for sale, and it needs no citation of authority to sustain the validity of such contracts. Option agreements to convey without any corresponding obligation to purchase will be enforced, if made upon sufficient and valuable consideration. Trelkeld v. Inglett, 289 Ill. 90, 124 N. E. 368;Seyferth v. Groves & Sand Ridge Railroad Co., 217 Ill. 483, 75 N. E. 522;Guyer v. Warren, 175 Ill. 328;Hayes v. O'Brien, 149 Ill. 403, 37 N E. 73,23 L. R. A. 555. In Carter v. Love, 206 Ill. 310, 69...