Foster v. Wynn

Mb. Justice Wateeman delivebed the opinion oe the Coubt. This was an action by an agent to recover commissions on a sale of real estate. Appellee being employed by appellant sold the latter’s property to one Caldwell. The contract was brought to, approved, and, it would seem, signed by him. Caldwell afterward made objection to the title—objection said by appellant to have been frivolous. It is quite evident that Caldwell did wish to be released from his contract, and appellant, without consultation with appellee, released him. Caldwell was evidently able to perform his bargain, and, quite likely would have done so had not appellant released him. If Caldwell had without release from, or fault of appellant, refused to complete the purchase, a different question as to the right to commissions would have been presented. Blankenship v. Ryerson, 50 Ala. 426; Gilchrist v. Clarke, 8 S. W. Rep. 572. Caldwell could not, by his statement when he was released from his bargain, that “ no commissions would be charged,” bind appellee, who had nothing to do with and was not present when the release was given. By the unconditional release of Caldwell the money he had deposited was released from any claim thereon appellant had before then had. Appellant at once ordered appellee to surrender the earnest money to Caldwell. The disputed and disputable questions of fact must be, by this court, presumed to have 'been found in favor of appellee. The jury have failed to find that appellee was guilty of any improper conduct, and they have found that he was authorized to and did make a sale of appellant’s property, to one able, willing and ready to buy; the judgment must therefore be affirmed. Carter v. Webster, 79 Ill. 435; McConaughy v. Mahannah, 28 Ill. App. 169; Adams v. Decker, 34 Ill. App. 17.