Ballard v. Shea

Mr. Justice Smith delivered the opinion of the court. There is no material conflict in the evidence in this case.It clearly appears that the purchasers under the contract of February 7, 1891, were unable to carry out and perform their part of the contract, by paying the balance of the purchase money when it became due. Mr. Street, the owner of the property, was ready to perform his part of the contract and convey the property according to its provisions. The purchasers made every effort to save the money which they had paid and prevent a forfeiture. They finally induced Street, by paying him* several hundred dollars, to release them from the contract, and it was abandoned and given up, at the request of the purchasers. As a part of the same transaction a new contract was entered into for the purchase of four blocks instead of eight blocks. On the trial the plaintiff amended his declaration by withdrawing the common counts. The declaration then, as it finally stood, counted on the special contract set forth in the special counts. This was an express contract, and there was no foundation in the case for a recovery on an implied contract. The plaintiff was bound to prove the contract set out in his declaration and its performance on his part, and that the sale of the land therein mentioned was fully carried out, in order to show that he was entitled to the commission which appellant’s firm had agreed to pay him. The contract of purchase was never carried out. The purchasers were unable to pay the purchase money. Upon this state of facts there could not be a recovery under the terms and conditions of the contract declared on in the declaration. The contract was not .a general contract to pay commissions on sales madof by appellee. If it had been a very different question would have been presented. It was a contract to pay commissions at the rate named on the particular sale of February 7, 1891, which had been made, when that sale was fully carried out according to the agreement therefor, subject, however, to the further condition “that no other agent or broker shall make claim for such commissions.” FTo ground is perceived for construing the contract in such a manner as to cover any other sale than that named therein. There is nothing in the contract itself, or the relations of the parties, or the facts shown in the record which indicates that the words used did not express the precise contract intended. “Courts cannot adopt a construction of any legal instrument which shall do violence to the rulés of language or the rules of law. Words must not he forced away from their proper signification to one entirely different, although it might he obvious that the words used, either through ignorance or inadvertence, expressed a very different meaning from that intended.” 2 Parsons on Contracts, 6th ed., secs. 494, 495, 496. The language of the instrument declared on is not ambiguous, and if it does not cover the contingency that happened, it is no part of the duty of the court, by construction, to make it. As said in Smith v. Davis, 48 Ill. App., at page 202: “Where parties employ language having a plain and ordinary meaning it is not competent for the courts to destroy that meaning, even though it may appear that in a certain contingency the result would be somewhat harsh or even unexpected. It is to be presumed that the parties fully considered all contingencies, and if they did not, that they intended to abide by the terms of the contract in any event.” It is clear, we think, that the contract sued on does not contemplate the payment of a commission on a sale of four blocks made in July, 1891. The parties contemplated the payment of a commission on the sale of February Y, 1891, of the whole tract of land, and no other sale. The clear and concise language used is not capable of any other construction, and negatives any other meaning. In Meachem on Agency, sec. 965, p. Y93, the author says: “The parties are at liberty to make the payment of commissions dependent upon such lawful conditions and contingencies as please them, and where no improper advantage is taken, their express stipulations must prevail, although the result be that the broker finds that he has risked his labor and expenses upon the mere caprice of his employer.” The principle here involved is well stated in Illingsworth v. Slosson, 19 Ill. App. 612, as follows: “Where the parties have made an express contract, no contract will be implied, and the action must be upon the express contract, and the recovery under its terms, and no recovery on the quantum meruit is authorized or can he sustained. Walker v. Brown et al., 28 Ill. 378; Ford v. McVay, 55 Ill. 119; Sickels v. Pattison, 14 Wend. 257.” The rulings of the trial court and the instructions given were not in harmony with the views here expressed. In our opinion the motion of defendant at the close of the plaintiff’s case for a peremptory instruction to the jury to find for the defendant .should have been ■ allowed for the reasons above given. The court should have instructed the jury at the close of the evidence to find for the defendant. The refusal of the instruction asked by defendant was error. The second and third instructions given at the request of plaintiff are erroneous for the reason that they do not base the right to a recovery upon the contract sued on, but upon an implied contract. For the same reason the court erred in giving the instruction which the court gave upon its own motion. For the reasons indicated the judgment is reversed. Reversed.