Wysocki v. Bedrosian, 83-339

• Decision Date: 15 May 1984
• Docket Number: No. 83-339,83-339
• Parties: , 79 Ill.Dec. 564 Bernard A. WYSOCKI, d/b/a Welcome Mat Realty, Plaintiff-Appellee, v. John BEDROSIAN and Jeanne Bedrosian, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1339

463 N.E.2d 1339

124 Ill.App.3d 158, 79 Ill.Dec. 564

Bernard A. WYSOCKI, d/b/a Welcome Mat Realty, Plaintiff-Appellee, v. John BEDROSIAN and Jeanne Bedrosian, Defendants-Appellants.

No. 83-339.

Appellate Court of Illinois,

Second District.

May 15, 1984.

Rehearing Denied June 12, 1984.

Donald C. Stinespring & Assoc., Donald C. Stinespring, Spring Grove, for defendants-appellants.

Caldwell, Berner & Caldwell, William I. Caldwell, Jr., Woodstock, for plaintiff-appellee.

VAN DEUSEN, Justice:

Defendants appeal from the trial court's entry of summary judgment in favor of plaintiff real estate broker for his brokerage commission that was based on his procurement of a purchaser for defendants' house.

On May 3, 1980, defendants, John and Jeanne Bedrosian (sellers), entered into an exclusive listing agreement with plaintiff, Bernard A. Wysocki d/b/a Welcome Mat Realty for the sale of the Bedrosian home. In that agreement, defendants agreed inter alia to pay plaintiff a real estate brokerage commission of 6% of the sale price provided plaintiff provided a purchaser ready, willing and able to purchase in accordance with the listing agreement. On September 23, 1980, defendants entered into a contract for sale of the residence with David and Joanne Winchell (buyers), located by the plaintiff.

Relevant financing provisions of the sale contract provided that the purchaser had 10 days to secure a written loan commitment and that upon written notice to the seller of a failure to obtain financing given within the 10 days the seller might, at his option, have an equal period of time to secure the commitment for the buyer. If the buyer failed to give the seller proper notice of his failure to obtain financing, he would be deemed to have waived the financing contingency for all purposes. If upon receipt of proper notice, the seller did not elect to or failed to secure a loan commitment for the buyer, the contract would be null and void and the earnest money refunded.

The contract also required that all notices were to be in writing, served on the parties at the address following their signatures; that the mailing of the notice by certified or registered mail, return receipt requested, would be sufficient service; and that the seller's acceptance of the contract would be given in telegraphic form to the buyer or the listing broker who would be the buyer's agent for receipt thereof. In this latter event, the date of the receipt of the telegraphic acceptance would be the date of the contract.

The sellers accepted the contract on September 23, 1980, and the 10-day financing contingency would expire at midnight, October 3, 1980. On October 3, 1980, the buyers had not as yet received a written commitment for financing. Questions arose as to whether the sellers and buyers had entered into a valid agreement extending to October 17, 1980, the time for buyers to secure financing. Buyers did secure financing prior to the expiration of the alleged extension period, but on October 6 sellers advised that they considered the contract null and void. The sale was not consummated, and the earnest money was returned to buyers.

On April 1, 1981, plaintiff, the real estate broker, filed his complaint alleging that he had procured a purchaser for defendants' home pursuant to an exclusive listing agreement between the parties, attached to the complaint, and that plaintiff had "duly and fully performed all the terms and requirements of the Agreement" so that defendants thereby became indebted to plaintiff in the amount of 6% of the sale price, or $7,380. On August 14, 1981, defendants filed a motion to strike and dismiss the complaint due to plaintiff's alleged failure to plead that conditions precedent to defendants' duty to pay (contingencies in the sale contract) had been met. The court denied the motion the same day.

On August 27, 1982, defendants filed a motion for summary judgment supported by the affidavit of defendants and the deposition of the Winchells. On October 20, 1982, plaintiff filed a motion for summary judgment making reference to defendants' summary judgment motion and affidavits and attaching and incorporating affidavits of plaintiff and Larry Bode, plaintiff's associate. A hearing on both motions was held January 25, 1983, and the trial court granted plaintiff's motion for summary judgment while denying that of defendants.

On February 7, 1983, the court entered judgment in plaintiff's favor for $7,380 with interest from November 1, 1980, to the date of the order totaling $825.17 and costs of suit. Defendants' post-trial motion was denied, and this appeal followed. On appeal, defendants request that we vacate or reverse the judgment against them and enter judgment in their favor on their motion for summary judgment.

Defendants first contend that the trial court erred in denying their motion of August 14, 1981, to strike and dismiss plaintiff's complaint. They argue that plaintiff alleged that he procured a purchaser for defendants' home and duly performed all of the terms and requirements of the exclusive listing agreement but did not allege anywhere in the complaint that the purchaser was one who was "ready, willing and able to purchase" as the listing agreement requires. Moreover, plaintiff did not plead that "conditions precedent" to the purchasers being bound, contained in the contract to purchase, were satisfied.

Defendants cite Brunette v. Vulcan Materials Co. (1970), 119 Ill.App.2d 390, 395, 256 N.E.2d 44, for the proposition that "[i]f an essential and material allegation of fact is absent from a complaint, the complaint should be dismissed." (Emphasis added.) In Brunette, the court could not find the necessary elements for an alleged agreement in the complaint and attachments thereto; to the contrary, the attachments constituted evidence of negotiations clearly contemplating a meeting to draft an agreement. Therefore, the agreement alleged in the complaint was a conclusion based on insufficiently pleaded facts. In such a case, the court concluded, a complaint may be dismissed, and the court upheld the trial court's granting of a motion to dismiss.

In this case, however, plaintiff attached a copy of the exclusive listing agreement and the contract to purchase as exhibits to the complaint, specifically referring to them in the body of the complaint. According to the Code of Civil Procedure, an exhibit is a part of the pleading for all purposes (Ill.Rev.Stat.1981, ch. 110, par. 2-606), which would apparently include ruling on a motion to dismiss. The attached exhibits are an integral part of the complaint and must be so considered. (Theodosakis v. Austin Bank of Chicago (1981), 93 Ill.App.3d 634, 637, 49 Ill.Dec. 116, 417 N.E.2d 806.) The exclusive listing agreement here attached to the complaint states that the 6% commission is payable inter alia when the realtor provides a purchaser ready, willing and able to purchase, and the complaint alleged that plaintiff duly performed all of the terms and requirements of that agreement thus entitling plaintiff to a 6% commission.

Pleadings are to be liberally construed with a view of doing substantial justice between the parties (Ill.Rev.Stat.1981, ch. 110, par. 2-603(c)). A reviewing court should interpret the facts alleged in the light most favorable to the plaintiff (Theodosakis v. Austin Bank of Chicago (1981), 93 Ill.App.3d 634, 637, 49 Ill.Dec. 116, 417 N.E.2d 806), and an action should not be dismissed if it clearly appears that a set of facts could be proved under the pleadings that would entitle plaintiff to relief (93 Ill.App.3d 634, 637, 49 Ill.Dec. 116, 417 N.E.2d 806; Panorama of Homes, Inc. v. Catholic Foreign Mission Society, Inc. (1980), 84 Ill.App.3d 142, 145, 39 Ill.Dec. 513, 404 N.E.2d 1104). All facts well pleaded as well as all reasonable inferences that can be drawn therefrom must be accepted as true in considering a motion to dismiss. 93 Ill.App.3d 634, 636-37, 49 Ill.Dec. 116, 417 N.E.2d 806; 84 Ill.App.3d 142, 145, 39 Ill.Dec. 513, 404 N.E.2d 1104.

Unlike Brunette the exhibits here attached support the allegations in the complaint. Read together, the complaint and exhibits sufficiently allege that plaintiff procured a purchaser ready, willing and able to purchase. That was a requirement of the exclusive listing agreement entitling plaintiff to a 6% commission, and the complaint alleges that plaintiff performed all of the terms and conditions of that agreement thereby entitling plaintiff to that commission.

As to the conditions in the sale contract (1) that the buyers be able to secure financing within a stated time and, failing to do so and giving proper written notice thereof to the sellers, the buyers might avoid their contract obligation to purchase if the seller elected not to or failed to secure financing for the buyers within a like amount of time and (2) that buyers might avoid their obligations to purchase if they were unable to sell their current residence, these appear to be conditions subsequent rather than conditions precedent. A condition precedent is to be performed before the obligation becomes binding on the parties, while a condition subsequent is one which divests liability that has already attached on the failure to fulfill the conditions. (Black's Law Dictionary 266 (5th ed. 1979).) The sale contract states that buyers' failure to give proper notice of a failure to obtain financing operates as a waiver of that contingency and that with proper notice of such failure the contract will become null and void upon seller's election not to or failure to secure a commitment for the buyer. Similarly, the prior residence sale contingency allows the seller to continue to show the property to others but obligates the seller to immediately inform the buyer of any other offer they wish to accept thereby giving the buyers 72 hours to elect to waive the contingency and close within 20 days. It is clear that under both...