United States District Court, Eastern District of Illinois
May 14, 1958
FRANK O. BITTNER, JR., PLAINTIFF,
AMERICAN-MARIETTA COMPANY, AN ILLINOIS CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Platt, Chief Judge.
Plaintiff, a citizen of St. Louis, Missouri, seeks to
recover for his services as a "finder". The defendant company
is a citizen of Illinois, and its principal office is in
It is alleged in the complaint that the plaintiff is
entitled to be paid for his services by virtue of an alleged
oral contract with the defendant to procure for the defendant
a willing seller of a cement company; that the plaintiff
performed the contract and the defendant purchased the Dragon
Cement Company as a result of the plaintiff's services.
The defendant presents a motion for summary judgment
pursuant to Fed. Rules Civ.Proc. rule 56(b), 28 U.S.C.A.,
based upon the pleadings, the plaintiff's deposition, and the
ordinance of the city of Chicago requiring a "general broker"
to have a license.
The defendant contends that a relationship of broker and
client existed between the plaintiff and the defendant, and
since the plaintiff was not licensed in the city of Chicago to
act as a broker he cannot recover.
It is not disputed that the plaintiff was engaged in the
brokerage business with Edward D. Jones Co. of St. Louis,
Missouri; that the alleged contract of employment was not made
in Chicago; that Dragon Cement Company is not located in
Illinois; and that the plaintiff performed his services in
locating a cement company outside of the city of Chicago.
From the deposition it appears that the plaintiff made an
effort to locate companies available for sale and called the
defendant from his St. Louis office to determine whether the
defendant might be interested. The plaintiff made a trip to
Chicago and informed the defendant that the Dragon Cement
Company had expressed a willingness to sell if a satisfactory
price could be reached.
The Chicago Ordinance, which was in full force and effect
when the plaintiff performed his services, provided as
"113-1. The words `general broker' are hereby
defined to mean any person other than an employe
of the principal from whom the business is done
that negotiates, buys, sells, trades, leases, or
for another, on a commission basis, or on the
basis of compensation in proportion to the amount
of the transaction, any stocks, bonds, mortgages,
loans, investment, securities, certificates of
indebtedness, foreign exchange letters of credit,
steamship transportation tickets, grain,
provisions, produce, livestock, goods, wares,
merchandise or any other commodity, article or
property (except real property), whether similar
or dissimilar to those herein mentioned, or acts
through the medium of another licensed broker in
the capacity and for any of the purposes
"113-2. It shall be unlawful for any person to
engage in the business of, or to act in the
capacity of, a general broker without first
having obtained a license so to do."
Thus, the Chicago Ordinance confines its definition to any
person who negotiates, buys, sells, trades, or leases for
another any property. The plaintiff alleges he procured the
available property. One who merely procures does not act as
agent in the consummation of the sale, or have anything to do
with the fixing of the price, or the terms of the sale. The
principals negotiate the terms between themselves. All the
"finder" is required to do is to bring the seller to the
attention of the purchaser. Neither counsel for the parties
nor has the court found any case in the Illinois Appellate or
Supreme Courts directly in point.
Cities are granted the power to license brokers by the
Legislature. Ill.Rev.Stat. ch. 24, §§ 23-91.
"Statutes granting powers to municipal
corporations are strictly construed and any fair
or reasonable doubt of the existence of the power
is resolved against the municipality which claims
the right to exercise it. Therefore, since a city
has no power, except by delegation from the
General Assembly, to impose any tax or license
fee, the power to do so must be expressly granted
by the legislature or necessarily implied in, or
incident to, other powers which are expressly
granted." (Citing cases.) City of Chicago v.
Barnett, 404 Ill. 136, 138-139, 88 N.E.2d 477,
"`"Brokers" in the ordinary acceptance and
meaning of the word, designate persons who
solicit business generally and represent any
parties who may come to them. They are sometimes
referred to as middlemen or negotiators of
contracts or bargains between others.'" City of
Chicago v. Dollarhide, 255 Ill.App. 350, 355.
Since the statute authorizing a city to license a broker is
strictly construed, there is a fair and reasonable doubt that
the city has the power, either express or implied, to license
one who merely procures the business for the defendant to
purchase. A mere "finder" would not constitute a broker. There
is no reliance upon the "finder" to perform the duties of the
broker in negotiating the contract.
In New York the distinction between a "finder" and a
"broker" has been recognized. In Kuffler v. List,
D.C.S.D.N.Y., 144 F. Supp. 776, 778, the court held that there
was a "difference between finding a business for others to do
and acting as a broker in doing the business." The court there
cited P.W. Chapman & Co. v. Cornelius, 2 Cir., 1930,
39 F.2d 555, where it was held that where the plaintiff brought to the
attention of the defendant a party who would finance a loan
but did not negotiate the loan, he would not be required to
have a broker's license as provided by the statute in New
York. This statute states:
"No person * * * shall bring or maintain an
action in any court of this state for the
recovery of compensation for services rendered *
* * in the buying, selling, exchanging, leasing,
renting, or negotiating a loan upon any real
estate without alleging and proving that such
person was a duly licensed real estate broker. *
* *" Real Property
Law N.Y., Consol.Laws, c. 50, § 442-d.
To the same effect see McKenna v. Edwards, 1937, 19 Cal.App.2d 327,
65 P.2d 810.
A motion for summary judgment should not be granted if there
is a real issue of fact. Caylor v. Virden, 8 Cir., 1955,
217 F.2d 739. From the plaintiff's testimony in his deposition it
cannot be definitely concluded that he was to negotiate the
contract for the purchase of the cement company, or merely to
procure the cement company, while the defendant was to
negotiate the terms of the sale. By the complaint the
plaintiff is attempting to collect for his services as a
"finder", in which case he would not be required to have a
license. Since the testimony in the deposition, for the
purpose of the motion, must be interpreted favorably to the
plaintiff, there is a genuine issue of fact, and the motion
for summary judgment must be denied.
It is so ordered.
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