Lawrence v. Rhodes

• Citation: 188 Ill. 96,58 N.E. 910
• Parties: LAWRENCE v. RHODES.
• Decision Date: 20 December 1900
• Court: Illinois Supreme Court

188 Ill. 96

58 N.E. 910

LAWRENCE

v.RHODES.

Supreme Court of Illinois.

Dec. 20, 1900.

Appeal from appellate court, First district.

Action by William M. Rhodes against Charles H. Lawrence. From a judgment of the appellate division (87 Ill. App. 672) affirming a judgment for plaintiff, defendant appeals. Reversed.

Magruder, J., dissenting.

Marston, Augur & Tuttle, for appellant.

Bulkley, Gray & More, for appellee.

HAND, J.

This is an action of assumpsit, brought by appellee against appellant, in the circuit court of Cook county, to recover compensation for the sale of certain real estate. Appellee recovered a judgment for $1,500, which has been affirmed by the appellate court for the First district, and appellant has appealed to this court from such judgment of affirmance.

The appellant authorized the appellee to effect a sale of a certain 60-acre tract of land of which he was the owner, located in Cook county, by virtue of the following instrument in writing: ‘Chicago, May 31, 1890. William M. Rhodes, Esq.-Dear Sir: I hereby agree that if you effect a sale of the S. W. 1/4 sec. 25, T. 39 N., R. 12 east of the 3d P. M., except the W. 100 acres (subject to C., B. & Q. right of way), at $750 per acre or better, to pay you 2 1/2% on $750 per acre, and one-half of all above that amount, on closing the sale. Charles H. Lawrence.’ Soon after obtaining such authority, appellee brought together the appellant and one Samuel E. Gross, a prospective purchaser, with whom appellant, on the 11th day of June, 1890, entered into a contract in writing with reference to the sale of said lands at the sum of $800 per acre, of which sum $1,500 was paid in cash at the time of the execution of the contract, $10,500 in cash was to be paid on the delivery of a deed, and the balance of the purchase price was to be paid in three equal installments maturing in one, two, and three years from the date of sale; the deferred payments to bear interest at 6 per cent. per annum, and to be secured by trust deed upon the premises. Said contract, among other things, contained the following provision: ‘In case said second party shall not, upon tender of proper deeds of conveyance to him and of the abstract above described, make the payment of the balance of the cash payment, to wit, ten thousand five hundred dollars ($10,500), and duly execute, acknowledge, and deliver to first party the notes and trust deed for the deferred portions of the purchase price hereof, as herein provided, then, and in that case, this agreement shall be null and void, and the earnest money paid hereon may be retained by the first party as payment in full of all damages for nonperformance hereof by said second party.’ Appellant furnished an abstract of title to the premises to Gross, who, after some considerable delay, refused to accept the title and close the sale. To avoid litigation and prevent the tying up of the sale of the land, which appears to have been in demand, appellant refunded the $1,500 before that time received by him, and the following indorsements were made upon the contract, and the same canceled and surrendered:

‘November 14, 1890. Received of Mr. Charles H. Lawrence the sum of $1,500 hereinabove mentioned as the deposit made on account of said contract, and release the said Lawrence from all liability under said contract, which is hereby mutually canceled. S. E. Gross. [Seal.] By Magruder.’

‘November 14, 1890. I hereby release Samuel E. Gross from all liability under the above contract. Charles H. Lawrence. [Seal.]’

Appellee demanded of appellant that he pay him the amount of his compensation for having made a sale of said premises, and, upon appellant's refusing so to do, brought this suit.

On the trial, after the evidence was all in, appellant moved the court to instruct the jury to find the issues for the defendant, which the court declined to do. The question, as a question of law, was thereby raised whether or not appellee had effected a sale of said premises according to the terms of his employment. The contention of appellee is that, so soon as the contract between appellant and Gross was signed, s sale was effected, and he was entitled to his compensation for making such sale. We are of the opinion such contention cannot be sustained, and that appellee did not effect a sale by procuring a purchaser who was willing only to enter into a contract which contained the provision above set forth. By the terms of the contract entered into by Gross with appellant, Gross did not purchase the premises, and a sale thereof was not thereby effected. By such contract Gross agreed to purchase the premises at $800 per acre, or to forfeit $1,500; it being optional with him whether he would buy, or forfeit the $1,500. If he saw fit to forfeit the $1,500, as he had the option to do, no sale was effected, and no compensation earned, by appellee. In order for appellee to comply with his undertaking so as to entitle him to compensation, he was...