Morris v. Anderson
| Decision Date | 25 February 1970 |
| Docket Number | Gen. No. 52740 |
| Citation | 259 N.E.2d 601,121 Ill.App.2d 169 |
| Parties | Lois A. MORRIS, Plaintiff-Appellant, v. Margaret ANDERSON, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Rappaport, Clorfene & Rappaport, Chicago, for plaintiff-appellant; Hamilton Clorfene, Chicago, of counsel.
Thomas C. Velasco, Glenview, for defendant-appellee.
This is an appeal from a summary judgment. The issue is whether grant of the summary judgment to defendant was proper.
Plaintiff is a licensed real estate broker. Her amended complaint alleged that on August 18, 1962 she told defendant that she could find a purchaser for defendant's property at 6011 North Winthrop, Chicago, and one adjoining it, to permit construction of an apartment building on the two properties; that defendant agreed to sell for $39,500.00 and pay plaintiff a broker's commission of 6% On the selling price; that on July 30, 1965 plaintiff sent a real estate contract to defendant with an offer for the sum of $37,000.00, but defendant was indecisive about accepting or rejecting the offer; that on February 21, 1966, plaintiff obtained an offer of $50,000.00 for defendant's property, and an offer of $50,000.00 for the adjoining property which the owner accepted, the offers being contingent on the ability of the purchaser to buy both properties; that defendant breached her agreement to sell, after plaintiff procured a purchaser who was ready, willing and able to pay the sum of $50,000.00; that as a result of defendant's breach, plaintiff lost brokerage commissions on both pieces of property, to her damage in the sum of $6,000.00.
Defendant answered. She admitted that plaintiff was a licensed real estate broker. She denied every other material allegation. In the alternative, defendant pled that even if she had agreed to sell her property as alleged, there was not performance sufficient to entitle plaintiff to a commission. With regard to the offer dated July 30, 1965 for the sum of $37,000.00, defendant pled that if the offer was made, it was not sufficient to entitle plaintiff to a commission under the terms of the alleged oral agreement. Concerning the offer of February 21, 1966 for $50,000.00, defendant pled that this offer was not made in accordance with the terms of the alleged agreement; therefore, plaintiff was not entitled to recover a commission from defendant. To the answer, defendant attached as an exhibit a document which she said, on information and belief, was the offer of February 21, 1966.
Defendant filed a motion for summary judgment containing three paragraphs. The first, by way of introduction said '(T)hat no triable issue of fact is presented from the pleadings * * *.' The second repeated the substance of the answer and stated that the $37,000.00 offer described in plaintiff's amended complaint was not within the terms of the alleged oral agreement. The third paragraph stated that the offer of $50,000.00 was not a Bona fide offer within the terms of the oral agreement alleged by plaintiff. Defendant stated that the offer contained terms and conditions which were completely outside the alleged oral agreement. She referred to the document appended to her answer. Defendant's affidavit recited that on or about February 18, 1966, plaintiff submitted to her the real estate contract which was attached to the answer; but at no time '(h)as affiant had any communication with Alba Co., (the proposed buyer) or any agent or officer thereof, with regard to this document or any matter whatever.'
Plaintiff filed a counter-affidavit in which she said the offer of $50,000.00 was Bona fide; that the defense interposed in the motion for summary judgment was an afterthought of defendant after she changed her mind and unconditionally refused to sell her property. Plaintiff alleged that after submission of the offers described in the amended complaint, defendant refused to sell her property '(a)nd would give as her reason that it was private business * * *' Plaintiff alleged that defendant made no objection to any provision of the offers; that the contentions concerning the terms and conditions of the offers are barred because under Illinois law defendant's conduct estopped her from raising these contentions as defenses.
The court, on the motion for summary judgment...
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