Sheppard v. Fagan

• Decision Date: 12 March 1981
• Docket Number: C-L-F,No. 80-51,80-51
• Citation: 94 Ill.App.3d 290,418 N.E.2d 876,49 Ill.Dec. 856
• Parties: , 49 Ill.Dec. 856 Daniel L. SHEPPARD and Kathleen M. Sheppard, Plaintiffs-Counter-Defendants- Appellees, v. Carole L. FAGAN d/b/aRealtors, Defendant-Counter-Plaintiff-Appellant.
• Court: United States Appellate Court of Illinois

Page 876

418 N.E.2d 876

94 Ill.App.3d 290, 49 Ill.Dec. 856

Daniel L. SHEPPARD and Kathleen M. Sheppard Plaintiffs-Counter-Defendants- Appellees, v. Carole L. FAGAN d/b/a C-L-F Realtors Defendant-Counter-Plaintiff-Appellant.

No. 80-51.

Appellate Court of Illinois, First District, Fourth Division.

March 12, 1981.

Robert D. Banzuly, Chicago, for defendant-counter-plaintiff-appellant.

Driscoll & Driscoll, Schaumberg, for plaintiffs-counter-defendants-appellees.

JIGANTI, Justice:

Carole L. Fagan, d/b/a/ C-L-F Realtors appeals from a $10,000 judgment entered in favor of Daniel L. Sheppard and Kathleen M. Sheppard in a breach of contract action. She also appeals from a judgment entered in favor of the Sheppards and against her on her counterclaim based on an alleged breach of contract. Fagan questions the elements of damages, rulings on the evidence, the manifest weight of the evidence and instructions given and refused.

The Sheppards were the owners of a home in the Village of Schaumburg. Fagan is a real estate broker. On May 26, 1978, the parties entered into two separate agreements. In one, the Cooperative Selling Contract, Fagan was given an exclusive listing on the home with a sales price of $85,900. The real estate commission was stated to be 7% on the first $50,000 and 6% thereafter. The same day the parties entered into another contract, the Guarantee to Purchase Agreement. The second contract provided that if the property was not sold by September 20, 1978, Fagan agreed to purchase the property for a net price of $77,520. From the evidence it appears that the gross price was $83,000. The contracts provide, as far as is pertinent to this appeal, that the seller shall cooperate fully with the broker, the listing office shall have a key to the property, the property must be properly maintained and the property must be available for showing at all times.

Two and a half months after the agreements were entered into, on August 8, 1978, an attorney for Fagan sent a note to the Sheppards stating that Fagan was cancelling the Guarantee to Purchase Agreement because the Agreement required that the listing office shall have a key and the key to the property was recently withdrawn and also that the Sheppards were to make the property available for showing at all times and the property was not always available therefore, hindering a sale by Fagan.

Fagan did not sell the house by September 20, 1978. She did not buy the house herself. The Sheppards were not able to sell the house until July 19, 1979. They received $79,500 for the home.

Kathleen Sheppard testified that she was never asked to have a key placed with C-L-F Realtors. Daniel Sheppard testified that he had been told by Emalee Andre, the sales associate of Fagan who was the listing agent for the Sheppards' house, that not leaving a key with the office would not present a problem. Andre testified that on several occasions during June, July and August she asked Kathleen Sheppard for a key to the house and told her that the house could not be shown because the broker did not have a key to it. She never told the Sheppards that they did not have to provide her with a key. She stated that she asked the Sheppards for a key on several occasions but when Kathleen Sheppard told her that she would be at home all the time except on Tuesdays she accepted that and did not press further to get the key. Approximately 25 people saw the plaintiffs' home between May 26 and August 8. Andre testified that that was quite a few people to see the house in that space of time. There were approximately three or four open house showings during that time.

The Sheppards presented evidence of damages totalling $11,325. This figure represents: $4500 for tax and interest expenses incurred between September 20, 1978 and July 19, 1979; $2300 for an interim loan payment made on a house in Wisconsin; $605 for incidental expenses such as closing costs and attorneys' fees; the $3500 difference between $79,500, the price they received for their home, and $83,000, the gross price for which they alleged Fagan was liable under the contract; and $420 for utilities paid from the time of the breach until late December at which time utility payments stopped because the home was rented out. The $4500 figure for taxes and interest payments is subject to some dispute and will be considered subsequently.

Fagan makes several contentions on the issue of damages. She states that the proper measure of damages is the difference between the contract price and the market price at the date of the breach of contract. She cites as authority Burnham v. Roberts (1873), 70 Ill. 19 and Dickson v. Turner (1909), 149 Ill.App. 394. From that premise Fagan argues that since that is the proper measure of damages the court was in error in admitting evidence of other damages.

We agree that a proper measure of the element of damages for the real estate itself is the difference between the contract price and the market price on the date of the breach. However, there is nothing in either of the cases cited to suggest that this is the only element of damages. The general rule on contract damages is that they are recoverable as they may fairly and reasonably be considered to have arisen naturally from the breach of the contract itself, or such as may reasonably be supposed to have been in the contemplation of the parties as they made the contract. (Underground Construction Co. v. Sanitary Dist. of Chicago (1937), 367 Ill. 360, 11 N.E.2d 361.) Fagan does not argue here that these items were not...