Schulte v. Meehan

Mr. Justice Adams delivered the opinion of the court. Appellant’s counsel contend that the court erred in excluding the contract signed by Frank, Joseph and Ellen Meehan and Emmanuel Hogensen, and in instructing the jury to disregard said contract in their consideration of the case. Counsel say that the contract was admissible, “for the purpose of showing that Hogensen was ready, willing and able to make the trade therein agreed to, regardless of whether such contract was executed so as to bind appellees or not.” The contract, in the body of it, purports to be with all the Meehans, including John and Ellen Meehan, and provides, “Frank, Joseph, Ellen, John and Mary Meehan doth hereby agree to convey said party of the second part, his heirs or assigns, by warranty deed from Frank, Joseph, Ellen, John and Mary Meehan, the following described property, situated in the county of Cook and State of Illinois, to-wit”: Here follows a description of the Meehan property. This expresses a willingness to make the exchange on condition that a deed shall he executed by all the Meehans, owners of the property, conveying that property, and certainly is not evidence of willingness to make the proposed exchange on any less or other condition, as, for instance, to take a conveyance from Frank, Joseph and Ellen. The contract was incomplete without the signatures of all those named in the body of it as parties. Russell v. Annable, 109 Mass., 72; Barbour v. Burrows, 51 Cal., 404. Appellant knew well that Hogensen was not willing to agree to make the exchange unless all the Meehans would agree to it; hence he asked Frank Meehan for the names of all interested in the property, and put all their names in the contract which was drafted in his office. The fact that the contract is not signed by John or Mary Meehan, or hv Frank or Joseph Meehan for them, corroborates the testimony of Frank Meehan, that when the contract was presented to him for his signature by appellant, he said he did not care to sign it, as he did not know what the others would do, that he could not give any assurance that they would sign' it, and that appellant then said to him, “You sign it anyhow, and we will get Hogensen to sign it. If the others are satisfied, it will go through; if they are not satisfied, we will call it off.” Joseph Meehan also testified that, at the time he signed the contract, he told appellant that he would sign on condition that the contract would be satisfactory to everybody. It appears from appellant’s testimony that he took the contract to his office after Hogensen signed it, and it does not appear from the evidence that Hogensen saw it afterward before the proposed exchange fell through.' Hogensen evidently signed the contract on the supposition that all theMeehans named as parties to it would also sign it, and this was a condition of his signing. "Russell v. Annable, supra. Appellant was evidently in haste to have the contract signed by some of the parties. He told appellees that if they would not sign, Hogensen would back out, and told Hogensen if he would" not sign, the Meehans would back out. We are of opinion that the court did not err in excluding the contract as evidence, or in instructing the jury to disregard it. Counsel for appellant urge as error the giving of this instruction: “The court instructs the jury to disregard all the evidence offered in reference to what is known as the Hogensen deal.” Appellant testified that when appellees refused to pay him any commission on the Hogensen deal, either Frank or Joseph Meehan, it does not appear which, said to him: “You have a chance to trade the property off. I will pay you, after a while, double commission, if you find another purchaser,” and appellant says that, after that, he worked pretty nearly a whole year to find another person to take the property. The court, perhaps, gave the instruction in question on the theory that appellant abandoned all claim for commission on the Hogensen deal, and we think the jury would have been fully warranted in so finding. But whatever may have been the court’s reason for giving the instruction, we think it should not have been given. It was a question for the jury, on the evidence, whether the appellant was entitled to commission for his services in attempting to procure an agreement between Hogensen and appellees. It is argued that the following instruction, given at the appellees’ request, is erroneous: “The court instructs the jury that, if from the evidence they believe that the minds of the parties, in reference to the O’Hearn deal, did not meet, and that no valid and binding contract was made between Frank Meehan, Joseph Meehan and O’Hearn, then, in that case, you should find the issues for the defendants.” The theory of this instruction is that unless there was a valid contract in writing between Frank and Joseph Meehan and John O’Hearn for the exchange of the lands in question, or between appellees and Hogensen, which could be enforced, appellant could' not recover commissions, even though there was a complete oral agreement between the parties for such exchange. We do not understand this to be the law in a case where the agent is not employed or empowered to procure an actual sale or exchange of property, and it could not be assumed by the court, in view of the evidence, that the employment of appellant required him to effect an exchange of the properties before he could claim commissions. In Hersher v. Wells, 103 Ill. App., 418, the appellant submitted to the court an instruction to the effect that either the trade must have been consummated, or the contract must have been put in writing, so as to have been enforceable between the parties, and if such were not the fact, commissions were not earned. The court refused the instruction and the Appellate Court sustained the refusal, saying: “Under a contract of that kind, a real estate agent who finds a purchaser on the terms fixed by the owner of the property, such purchaser being ready, willing and able to take a conveyance and pay the purchase price, has earned his commissions,” and the court held that the fact that the contract in question in the case involved an exchange of land, did not affect the rule. Ib. 421. The law, as announced in the case cited is, as we think, fully settled by the decisions in this State. Pratt v. Hotchkiss, 10 Ill. App., 603; Goodridge v. Holladay, 18 ib., 363; McConaughy v. Mahannah, 28 ib., 169; Scott v. Stuart, 115 ib., 535; Carter v. Webster, 79 Ill., 435; Monroe v. Snow, 131 ib., 126, 136; Hafner v. Herron, 165 Ill., 242, 250-1. In support of the instruction in question appellees’ counsel relies on Wilson v. Mason, 158 Ill., 304. In that case the agent or broker claimed to have procured, as purchasers, the executors of the will of one Alfred Cowles, and claimed commissions for securing such proposed purchasers. There were two executors, and one of them signed, in his own name, as executor, a written agreement to purchase, and signed, also, the name of the other, executor by him. There was no proof that the executors had any power under the will to purchase land for the estate, nor any proof that the executor who signed had written authority to sign for his co-executor. The court held, in substance, that there being no proof that the executors were empowered by the will to purchase land, the broker had not procured purchasers who were able to purchase, and, therefore, he was not entitled to recover. Ho case has been cited in which it has been held that an agent employed to procure a purchaser for property, or a person willing to exchange properties, cannot recover commissions in the absence of a valid and enforceable written contract between the vendor and proposed vendee, or between the owners of property proposed to be exchanged. In Wilson v. Mason, supra, the court, on the first page of the opinion, say: “The duty of a broker, who is employed to sell real estate, is to find and produce to the vendor a purchaser, who is ready, willing and able to complete the purchase. This he must do before he is entitled to any commissions.” In Hersher v. Wells, supra, the Appellate Court says the case of Wilson v. Mason does not abrogate the rule laid down in that case as to what will entitle a broker to commissions. 103 Ill. App., 421. In Lawrence v. Rhodes, 188 Ill., 96, the court, after citing authorities to the effect that a broker is entitled to commissions when he has found a purchaser able, ready and willing to complete the purchase on the terms proposed by the vendor, say: “The cases of Wilson v. Mason, 158 Ill., 304, and Leete v. Morton, 43 Conn., 219, especially relied upon by appellee, are not in conflict with the authorities above cited. In both of these cases the contract of employment was that of an ordinary broker, in which it was not expressly agreed a sale should be effected, as is the case here, and the appellee did not present a purchaser to the appellant, who entered into a Valid, binding and enforceable contract,’ as he must have done in order to bring himself within thé rule as Announced in the Wilson case, and it was expressly ruled in the Leete case that no sale had been effected.” Ib. 102. See, also, Fox v. Starr, 106 Ill, App., 273. We find no reversible error in the admission of Frank Meehan’s testimony as to his conversation with Hogensen, or to his testimony as to the contents of a letter from his brother John. We think, however, the latter evidence should have been excluded. Appellant does not claim to have been employed by John Meehan, but only by appellees. The judgment will be reversed and the cause remanded. Reversed and remanded.