J. J. Harrington & Co. v. Timmerman

• Decision Date: 28 June 1977
• Docket Number: No. 76-247,76-247
• Citation: 50 Ill.App.3d 404,365 N.E.2d 721
• Parties: , 8 Ill.Dec. 483 J. J. HARRINGTON & CO., an Illinois Corporation, Plaintiff-Appellant, v. Emma TIMMERMAN and Sophie Feddeler et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 721

365 N.E.2d 721

50 Ill.App.3d 404, 8 Ill.Dec. 483

J. J. HARRINGTON & CO., an Illinois Corporation, Plaintiff-Appellant, v. Emma TIMMERMAN and Sophie Feddeler et al., Defendants-Appellees.

No. 76-247.

Appellate Court of Illinois, First District, Second Division.

June 28, 1977.

Ronald J. Guild, David A. Weininger, Chicago (Teitelbaum, Wolfberg, Guild & Toback, Chicago, of counsel), for plaintiff-appellant.

Kirkland & Ellis, Chicago (John E. Angle, Sydney B. McDole, Chicago, of counsel), for defendants-appellees.

DOWNING, Presiding Justice.

Plaintiff, J. J. Harrington & Co., a real estate brokerage firm, filed a declaratory judgment action against defendants Emma Timmerman and Sophie Feddeler, in the circuit court of Cook County to determine the right to $50,000 being held by plaintiff as earnest money under a contract to purchase real estate. Plaintiff appeals from a judgment of the trial court dismissing the complaint for failure to state a cause of action, and also appeals from an order denying a motion to vacate the judgment and denying leave to file an amended complaint. The issues are whether Count III of the complaint states a cause of action, and whether the court erred by denying plaintiff's motion to vacate the judgment and for leave to file an amended complaint.

In 1966, defendants Timmerman and Feddeler retained plaintiff as exclusive broker and agent for the purpose of selling certain real estate, and a written brokerage agreement was executed by defendants. On February 10, 1968, Emma Timmerman sent a letter to plaintiff canceling the contract on five days notice, as required by the original agreement. However, on September 11, 1968, defendants entered into an installment contract with the American National Bank and Trust Company of Chicago for the sale of the subject real estate which stated that plaintiff was entitled to the commission for the sale, and a sum of $50,000 was deposited with plaintiff as earnest money.

The sale was never consummated because the person signing on behalf of the bank was the attorney for Lee and Barbara Romano, the owners of the beneficial interest in the trust of which the bank was trustee, and he had no authority to sign on behalf of the bank.

In October of 1969, Lee and Barbara Romano filed suit for specific performance of the written contract against defendants, and the court granted defendants' motion for a judgment on the pleadings, specifically finding the contract was unenforceable because the person signing on behalf of the bank was not authorized to do so. That decision was affirmed in the case of O'Hare International Bank v. Feddeler (1973), 16 Ill.App.3d 35, 305 N.E.2d 325. In 1974, the Romanos filed a suit for specific performance of an oral agreement to sell the property, and that case was dismissed on defendants' motion because the court found that the oral contract was unenforceable.

Plaintiff brought the instant action on June 2, 1975, to ascertain the right to the $50,000 deposited by the Romanos as earnest money under the contract with defendants. On August 25, 1975, the complainant was amended to add Count III, by which plaintiff claimed $42,500 as its brokerage fee for finding a buyer for defendants, and Count IV, a claim in quantum meruit for services rendered in the amount of $42,500.

On July 28, 1975, defendants filed a motion to strike and dismiss the complaint, alleging, inter alia, that the complaint did not state a cause of action because there was no valid contract for the sale of the subject property, and that plaintiff failed to procure a ready, willing and able purchaser for the property in question. On October 29, 1975, the trial court granted defendants' motion pursuant to section 45 of the Civil Practice Act (Ill.Rev.Stat.1973, ch. 110, par. 45) with respect to all counts with prejudice. On November 18, 1975, plaintiff filed a motion to vacate the order of October 29, 1975, and for leave to file an amended complaint, and on November 20, 1975, the court denied the motion.

The relevant portion of Count III provides as follows:

"4. On or about February 19, 1968, plaintiff procured purchasers for said property who were ready, willing and able to purchase said property at the established price and who deposited the sum of $50,000.00 earnest money with plaintiff and caused to be executed a contract for the purchase of said property. A copy of that contract is attached to the Complaint as Exhibit C and is hereby incorporated by reference."

I.

Plaintiff contends that it earned a commission by producing a buyer who was ready, willing and able to purchase the property without regard to whether the transaction was actually completed, and argues a cause of action was stated by alleging those facts in Count III. In the case of Sharkey v. Snow (1973), 13 Ill.App.3d 448, 451, 300 N.E.2d 279, 281, the court stated:

"In order to state a cause of action against defendants, it is clear that plaintiff is required to allege in his complaint that he produced a buyer for the subject premises, who was ready, willing and able to purchase the same on terms specified in the listing agreement, and no others. (Sattler v. Oliver, 138 Ill.App. 210, Aff'd. 233 Ill. 536, 84 N.E. 652; See also: I.L.P Brokers § 78 and cases therein cited)."

Defendants contend that by incorporating by reference the September 11, 1968 contract as part of paragraph 4, plaintiff identified the buyer as the American National Bank because the contract describes the bank...