Illingsworth v. Slosson , 19 Ill. App. 612 ( 1886 )

Moran, J.

The written contract between the parties to this case is plain, full and unambiguous. Slosson was engaged to procure a loan for Illingsworth of the sum of ten thousand dollars, for the term of five years, at six per cent, interest, and for doing so he was to be paid two and one half per cent, on said amount. The evidence shows that whatever he did about the matter he did in pursuance of the contract, and it further conclusively establishes that he failed to obtain any loan upon the conditions of the contract.

The plaintiff having clearly proven that he failed to perform the contract, we are at a loss to understand how he could obtain remuneration for what he did in trying to perform it. It does not appear that he was prevented from accomplishing what he undertook by any act of defendant, but it does appear that he could not accomplish what defendant agreed to pay him for performing. The contract is entire. What was to be done by one party and what was to be paid by the other is certain and fixed. In such case there can be no apportionment, and no recovery for any part of the consideration, until that for which it is agreed to be paid has been performed. 2 Parsons on Contracts, 520-522; Rockwell v. Newton, 44 Conn. 333.

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 be sustained. Walker v. Brown et al., 28 Ill. 378; Ford v. McVay, 55 Ill. 119; Sickles v. Pattison, 14 Wen. 257. “One who, for a stipulated price, undertakes to find a purchaser for a farm, is not entitled to anything unléss he finds a purchaser willing to buy the whole farm. ” Weber v. Clark, 24 Munn. 354.

Cases cited by counsel for appellee, holding where brokers were given property for sale, or to find a customer, and through the efforts of the broker a customer is found, or the seller and buyer brought together, that the broker is entitled to his commission according to the customary rate, have no application to a case where there is a special contract; nor is any proof of custom admissible when the parties have covered the points by an express agreement. Collender v. Dinsmore, 55 N. Y.; Sandford v. Rawlings, 43 Ill. 92.

The jury has no right to give a verdict for some compensation to a party, on the general ground that he ought to have something for what he has done, when a contract is proven between the parties, by which they have agreed as to their respective rights and duties. The parties must be held to their contract, no matter how difficult, harsh or apparently unjust the operation of the rule may be. Bacon v. Cobb, 45 Ill. 47.

The verdict of the jury should have been set aside by* the court as being without support from the evidence, and the judgment was erroneous and must be reversed.

Reversed and remanded.