Snow v. Schulman

• Decision Date: 11 April 1933
• Docket Number: No. 21652.,21652.
• Citation: 185 N.E. 262,352 Ill. 63
• Parties: SNOW et al. v. SCHULMAN.
• Court: Illinois Supreme Court

352 Ill. 63

185 N.E. 262

SNOW et al.

v.SCHULMAN.

No. 21652.

Supreme Court of Illinois.

Feb. 23, 1933.

As Modified on Denial of Rehearing April 11, 1933.

Error to Second Branch, Appellate Court, First District, on Appeal from Circuit Court, Cook County; A. W. Summers, Judge.

Suit by Edgar M. Snow and others against Alexander S. Schulman. To review a judgment of the Appellate Court (267 Ill. App. 209) affirming a judgment for plaintiffs rendered by the circuit court on an arbitrator's award finding that plaintiffs were entitled to certain commissions, defendant brings certiorari.

Reversed and remanded.Miller, Gorham, Wales & Adams, of Chicago (Amos C. Miller and Frederic O. Mason, both of Chicago, of counsel), for plaintiff in error.

Tenney, Harding, Sherman & Rogers, of Chicago (Roger Sherman, Henry F. Tenney, William W. Miller, and S. Ashley Guthrie, all of Chicago, of counsel), for defendants in error.

HEARD, Chief Justice.

This cause is here on certiorari to review a judgment of the Appellate Court for the First District affirming, on appeal, a judgment rendered by the circuit court of Cook county on an arbitrator's award finding that Edgar M. Snow & Co. was entitled to receive $28,000, with interest at 5 per cent. per annum from April 2, 1925, from Alexander S. Schulman, as a commission for procuring the acceptance of a loan of $800,000 from the New England Mutual Life Insurance Company to Schulman.

In the trial court the parties entered into an arbitration agreement, by the terms of which ‘(1) all questions of law or fact at issue between the parties, as fixed in the pleadings filed in said suit, shall be, and they are hereby irrevocably submitted to Charles M. Thomson as arbitrator, and the pleadings in such suit and depositions shall be introduced in evidence before the arbitrator; (2) the arbitrator shall hear such evidence and arguments as he may deem necessary to determine the issues raised, he being the sole judge of the admissibility, competency, relevancy, materiality and weight of the evidence, and shall decide such issues and fix the amount, if any, due the plaintiffs in said case; * * * (4) the arbitrator may on his own motion, and shall at the request of either party, at any stage of the proceedings, submit any question of law arising in the course of the reference to the opinion of the court, stating the facts upon which the question arises, and such opinion, when given, shall bind the arbitrator in making his award.’

The arbitrator prepared an exhaustive report, taking up forty-one pages of the abstract of record. To quote from it: ‘The plaintiffs, Edgar M. Snow and Andrew A. Brock, are partners engaged in the real estate business under the name and style of Edgar M. Snow & Co. The defendant, Alexander S. Schulman, had undertaken to close his purchase of two contiguous pieces of property on May 15, 1925. These pieces of property are referred to in the testimony as the Bass property, located at the northeast corner of Dearborn and Harrison streets, Chicago, and the Ellsworth property, adjoining the Bass property on the north. In connection with his purchase of those properties the defendant on April 1, 1925, made application in writing to the plaintiffs for a loan of $1,000,000, agreeing therein to pay the plaintiffs a commission of three and one-half per cent. on the amount of said loan, provided they procured the acceptance of that application. It is the claim of the plaintiffs that they did procure such acceptance by a lender ready, willing and able to make the loan on the terms set out in the application, and that therefore they are entitled to the commission stipulated by the terms of the application. Claiming the contrary, the defendant resisted payment of the commission, which resulted in this suit brought by the plaintiffs against the defendant for its recovery.’ It is conceded that the original application was amended so that it specified that the amount of the loan was to be $800,000 instead of $1,000,000.

The report of the arbitrator included the following findings: ‘On the facts shown by the evidence as set out in the statement heretofore appearing herein and for the reasons given in the foregoing opinion, I find: (1) that the defendant, Alexander S. Schulman, by his application for a loan executed on April 1, 1925, as modified on April 17, 1925, agreed to pay the plaintiffs, Edgar M. Snow and Andrew A. Brock, doing business as Edgar M. Snow & Co., a commission of three and one-half per cent of the amount of the loan for procuring the acceptance of that application, as so modified, on or before April 28, 1925; (2) that the undertaking of the plaintiffs was to procure a valid and binding acceptance of such application within the time stipulated; (3) that the plaintiffs did procure a valid and binding acceptance of that application by the New England Mutual Life Insurance Company on April 22, 1925, and that such company was at all times ready, willing and able to make said loan; (4) that such an acceptance by the insurance company required the approval of the loan by its finance committee; (5) that the finance committee did properly approve the loan applied for by the defendant on April 22, 1925; (6) that the wording of the motion voted by the finance committee did not purport to cover the details or terms of the application and that it was not necessary that it should; (7) that the record of the vote taken by the finance committee in approval of the defendant's application was not inconsistent with or contrary to any of the terms of the defendant's application; (8) that by the terms of the defendant's application the lender was to be allowed a reasonable time for examination of the abstracts of title to the property being offered as security for the loan; (9) that the abstracts of title in question were delivered to the plaintiffs, and by them to counsel for the lender, on or about April 23, 1925; (10) that memoranda setting out divers and sundry matters subject to which the titles were found to be in certain designated parties were submitted by counsel for the lender to counsel for the defendant on April 29, 1925; (11) that the only serious or material objection to the titles as found by counsel for the lender was the one involving the old lease on the Bass property; (12) that this item was waived by the general counsel representing the lender on May 8, 1925, and the defendant was advised to that effect on that date; (13) that on the same day counsel for the lender advised counsel for the defendant that he was satisfied there was nothing in the remaining items which could not be taken care of, and that he would be glad to take up on that day the points necessary for clearing up the remaining items and closing; (14) that the time taken for examination of the titles and the consideration of the items referred to, subject to which the titles were found to be in certain designated parties, being from April 22 to May 8, 1925, was not an unreasonable time for such examination and consideration; (15) that the plaintiffs are entitled to be paid the commission stipulated in the application for the loan as executed by the defendant, amounting to three and one-half per cent on the amount of the loan, which was $800,000.’

After the arbitrator had prepared his report, the publication of the award was postponed to enable the parties to submit to the court ‘any question or questions of law involved herein, should they choose so to do.’ Thereafter four questions of law were submitted to the court by plaintiff in error, Schulman. The questions and the court's answers to the same are as follows:

‘1. Was the plaintiff required, in order to earn said commission, to procure, within the time limited, a legally valid acceptance of defendant's application, for breach of which by the acceptor of the application an action by the defendant would lie? Yes, the arbitrator has specifically ruled to such effect in his opinion, at pages 24, 25.

‘2. Did the action of the finance committee constitute an acceptance of defendant's application? No, but in the opinion of the court it was not necessary to a binding acceptance by the insurance company of the defendant's application that the action of the finance committee constitute such an acceptance. In the opinion of the court the action of the finance committee constituted an approval of the proposed loan to the defendant, which was all that was necessary so far as the finance committee was concerned, and, following that, in the opinion of the court there was a valid and binding acceptance by the insurance company of the defendant's application for the loan, as found by the arbitrator in his opinion, at page 27.

‘3. Since the lender-the acceptor of the application-was by the terms of the application to loan a part of the amount applied for more than one year after the time limited for securing the acceptance, was the acceptance required to be in writing, signed by the acceptor of the application or by...