Nolan v. East , 1907 Ill. App. LEXIS 192 ( 1907 )

Mr. Justice Willis

delivered the. opinion of the court.

This was. a suit brought by A. H. East and David Capes, appellees, before a justice of the peace of Livingston county, against appellant, Thomas Nolan, and taken on appeal to the Circuit Court of said county, where a trial was had before a jury, resulting in a verdict in favor of appellees for $160. A motion for a new trial was denied, judgment entered against appellant for the amount of the verdict and costs, and this appeal.

The record shows the following stipulation: “It is hereby stipulated that the plaintiff is suing to recover commissions on the sale of 160 acres of land which Mr. Nolan listed with the Pontiac Realty Company the early part of August, 1904, which said land was sold by C. K. Brittingham to one Massion.” It was further stipulated that the farm in question was sold by C. K. Brittingham the last week in August, 1904. From the oral evidence it appears that appellees were real estate agents operating as a firm under the name of the Pontiac Realty Company, and that the usual commissions for the sale of the farm lands was $1 per acre; and that appellees spent some time and incurred some expense in their efforts to find a purchaser. The only contested question of fact appearing in the record was as to the terms of the listing of the farm or appellees’ agency for its sale. On the trial appellees urged that the evidence showed that their agency for the sale of the land was exclusive for the month of August; and that they were entitled to recover commissions because of the sale made in that month by Brittingham. Appellant contended that he had not given appellees exclusive authority to sell. The trial court adopted appellees’ theory of the law, and on their motion gave the jury the following instruction, among others of like character, on the measure of damages or basis of appellees’ right of recovery. 1 ‘ The court instructs the jury that if you believe from a preponderance of the evidence that the defendant, Thomas Nolan, by contract with them, gave the plaintiffs an exclusive agency for the sale of the land in question for the month of August, 1904, and that, during that month, said Nolan sold the same through the efforts of another agent, and that plaintiffs exercised reasonable diligence to make a sale under such exclusive contract, then the plaintiffs are entitled to recover a commission, and you should find the issues for them.” This, we think, is not the law. Before a real estate agent is entitled to compensation or commissions, he must produce a buyer, ready, willing and financially able to make the purchase, absolutely on the terms fixed by his principal, as said in a case quoted with approval in Lawrence v. Rhodes, 188 Ill. 96, and again approved in Marcy v. Whallon, 115 Ill. App. 435. The evidence in this record does not show that appellees had procured a buyer, ready, willing and financially able to purchase the land listed with them by appellants in the month of August, 1904, on his terms; consequently they are'not entitled to recover commissions. But the evidence does show that appellees had spent some time and incurred some expense in their efforts to find a purchaser. If, then, they had a right of recovery, which we do not. now pass upon, it was not for commissions earned by Brittingham in the performance of his contract, but for damages for a breach of contract, or upon a quantum meruit for time spent, labor done and performed and money paid out; but this is not a question for our determination here.

The court did not err in reconvening the jury, after they had returned their verdict, to correct an obvious error therein which the foreman called to the attention of the court immediately after they had taken their seats in the court room, although it was a sealed verdict, since signing which the jury had separated for the night. Rigg v. Cook, 4 Gilm. 352; Martin v. Morelock, 32 Ill. 485.

But for the error above indicated the judgment is reversed and the cause remanded.

Reversed and remanded.