Springer v. Orr

Me. Presiding Justice Windes delivered the opinion of the court. Appellant contends, first, there could be no recovery under the evidence on the common counts; second, that the court admitted improper and incompetent evidence; third, that there could be no recovery because one Weber, who brought about the execution of the contract .between appellant and Malcolm was not at the time a licensed broker; fourth, that there could be no recovery because the exchange was not completed; and fifth, that the ■ court erred in its rulings on instructions. As to the first contention, it is sufficient to say that appellee had performed his contract, and nothing remained but the payment of the agreed price by appellant. In such case, it is sufficient to declare on the common counts. The count for work done is all that is necessary, under the evidence. 2 Greenleaf on Evid., Sec. 104, and cases cited; Swigart v. Hawley, 140 Ill. 186; Gottschalk v. Smith, 156 Ill. 380; Combs v. Steele, 80 Ill. 101; Berkowsky v. Specter. 79 Ill. App. 215, and cases cited. It is unnecessary to review the numerous cases from other States cited by appellant’s counsel. The adjudications of this State control. Second. It is objected that the court improperly admitted in evidence the contract between appellant and Malcolm, because no authority of Yesey to sign Malcolm’s name to the contract was shown, and it was not shown that the Sherman E. Malcolm whose name was signed to the contract is the same Malcolm who signed a certain power of attorney which was offered to show Yesey’s authority to act for Malcolm, the owner of the Park Ridge property agreed to be conveyed to appellant. The power of attorney is dated March 10, 1896, purported to be executed by Shermary E. Malcolm, and Aims acknowledged before a notary public, and is ample in its terms to authorize Yesey to make and sign the contract in question. This Avasprima, facie proof that Yesey had authority to make the contract. Brown v. Metz, 33 Ill. 339. If the maker of the power of attorney was not the same person whose name Avas signed to the contract of exchange, the names being identical, it was incumbent on appellant to show that fact. Jackson v. Colby, 9 Cow. (N. Y.) 149. But it is further objected that the power of attorney though dated March 10, 1896, was not acknowledged until April 1, 1898, long after the contract of exchange Avas made. The objection is not tenable. It Avill be presumed, there being no evidence to the contrary, that the poiver of attorney Avas made the day it bears date. It. has never been held objectionable for an instrument relating to the conveyance of real estate to be acknowledged at a date subséquent to the date of the instrument. The acknowledgment is of Auilue only as shoAving that the instrument was in fact executed by the person Avhose name is signed to it, and the date it was signed is not important in establishing the validity or binding character of the instrument. Complaint is also made that the court excluded a letter Avritten by appellant to W. T. Orr & Co., dated June 18, 1896, which, it is claimed, was in answer to a previous letter by Orr to appellant concerning the completion of the trade. The letter -was not competent, in the absence of Orr’s letter or some proof of its contents, Avhich was not made. Nor Avas it proper because it contained only self-serving declarations. A litigant will not thus be allowed to make evidence in his own behalf. The Avitness testified that Malcolm oAvned the property at Park Ridge, and appellant moved to strike out the evidence, which motion the court overruled. It is improper, and also an immaterial ■ fact. The evidence should have been stricken out, but Ave are unable to see how it prejudiced appellant. Numerous other objections as to the court’s rulings on the admission and exclusion of evidence are made, all of which we have considered, but think that none of them present any reversible error. They are not of sufficient importance to require special mention. Third. Weber was in the employ of appellee and paid, by him for his services. It is shown that appellee was at the time of the transaction in question a regularly licensed real estate broker by the city of Chicago, which made the fact that Weber was not licensed a matter of no consequence. Fourth. Appellee earned his commissions when he procured Malcolm, through Yesey, to take appellant’s leasehold in exchange for the Park Ridge property, he being acceptable to appellant and having signed a contract to that effect with appellant. It was unnecessary, under such circumstances, for appellee to show that Malcolm was ready, able and willing to carry out the exchange according to the contract. Pratt v. Hotchkiss, 10 Ill. App. 603; Goodridge v. Holladay, 16 Ill. App. 365, and cases cited. It is only when a conveyance is not made, or no contract is entered into, that the broker must show the purchaser was ready, able and willing to purchase on the terms proposed, before he can recover his commissions. Schmidt v. Keeler, 63 Ill. App. 488, and cases cited supra. Fifth. The first instruction given for appellee is not based upon the evidence, in that it proceeds upon the theory of a sale effected through the instrumentality of the agent. The evidence does not justify such an instruction, but we are unable to perceive in what way the instruction could have prejudiced appellant. The instruction also has the notation of an authority, an Illinois case, at the end. This also was improper. We are unable, from a careful examination of the evidence, to see how the jury could have found any other verdict than it did, and the instruction, while improper, is not sufficient cause for a reversal. The third instruction for appellee also proceeds on the theory of a sale, but the same is true of this as of the first instruction. The error does not call for a reversal. Moreover, appellant’s third instruction asked, but refused by the court, is also based upon the theory of a sale, and estops appellant from claiming appellee’s instructions, based on a like theory, are cause for reversal. Watson Cut Stone Co. v. Small, 80 Ill. App. 328, and cases there cited. Appellant’s third instruction was properly refused, because it, in substance, told the jury appellee could not recover unless he provided a purchaser ready, able and willing to buy or exchange. This, as we have seen under the authorities cited supra, is not the law applicable to the facts of this case. The judgment is affirmed.