Bash v. Hill , 62 Ill. 216 ( 1871 )

Mr. Justice Walker

delivered the opinion of the Court:

This suit was brought by appellees, in the circuit court of Cook County, against appellants, to recover commissions as real estate agents, on property claimed to have been sold, and in the sale of which appellees aided appellants, all parties being real estate brokers. The declaration contains a special count, only, in which it is averred that appellants employed appellees to assist them in effecting a sale of real estate near the city, and for which they agreed to pay appellees $1,200 for their services in consummating the sale; that the sale was made to persons named.

The evidence, on the part of appellees, sustains the averments in the declaration. The contract was sworn to, as set forth in the declaration, by both appellees and one Hawhe. One of appellants swore that the offer was to give appellees $1,000 to assist them in effecting a different sale; or rather, the same property, but on different and better terms. And Crawford, one of the purchasers, testifies that several propositions were made in reference to the exchange of property, which was accomplished. An exchange or salé of the property was made, and appellees swear they aided its completion, and that if any change in the terms occurred, they were not notified of it, or in anywise apprised that appellants had so changed propositions as to dispense with, or intended to dispense with their services. They deny that when they were employed they were informed of the propositions then pending between the parties.

Appellants, having engaged the services of appellees, should, if they desired to dispense with their services, have given them notice. On the contrary, they seem to have omitted to do so, thus availing themselves of their services, and when the trade is made they refuse to compensate them.

We fail to see that there was a variance between the declaration and proof. Appellees’ evidence sustained the agreement set out in the declaration, while that of appellants is variant.

The jury, however, believed appellees’ to be true, and were fully warranted in acting upon it. The evidence would have warranted a verdict for the amount claimed in the declaration, but appellants have no right to complain, as this verdict operates in their favor. We perceive no error in the instruction given by the court on its own motion. It states the law of the case correctly, and could not have misled the jury. Perceiving no error in the record, the judgment of the circuit court is affirmed.

Judgment affirmed.