Appeal from the Circuit Court of Champaign County; the Hon.
BIRCH E. MORGAN, Judge, presiding. Reversed and remanded with
Rehearing denied June 20, 1962.
This is an interpleader action brought by plaintiff, The First National Bank in Champaign, as executor of the Will of Mary E. Buchan, Deceased, seeking to have determined which of the two defendants is entitled to a real estate brokers' commission on the sale by plaintiff of certain real estate to Hershel Roth and Jane Roth. Upon answers being filed, the court heard evidence and entered a decree in favor of the defendant, O.B. Pace. Prior to the commencement of the trial, plaintiff deposited the sum of $2,676, the amount of the commission, with the clerk of the circuit court. The defendant, Lynn O. Penninger has appealed.
For the most part the facts are not in dispute and show that the defendants were licensed real estate brokers; that the real estate sold by the plaintiff was a 160 acre farm, which was part of the Buchan estate; that about August 20, 1960, Penninger made an appraisal of this tract for plaintiff; that he then learned the farm would be for sale; that in the late summer of 1960 Roth was in Penninger's office where he learned that the Buchan farm would be sold; and that later Penninger discussed the sale of the farm with Roth. On Thursday, November 3, 1960, Penninger having learned definitely from plaintiff that the farm would be offered for sale went to see Roth and told him that letters listing the farm for sale would go out from the bank in a day or two. On that occasion Roth asked what the price of the farm would be and Penninger said he did not know; that about 5 o'clock in the afternoon of Friday, November 4, Penninger again went to see Roth and told him he had been to see Mr. Kearney and Mr. Dobbins at the bank and that the listing letters were in the mail; that Penninger then told Roth the farm would be quoted at $550 per acre and recommended that Roth bid $5 more per acre because if the tenant on the farm should bid $550 per acre, the latter's offer would be given preference over Roth's bid. Penninger again saw Roth and his wife on the night of November 4 and discussed with them possession of the farm, insurance, and the matter of obtaining a loan to complete the sale, and at that time he also told Mr. and Mrs. Roth he would see them the next morning after he had gotten his letter from the bank. On Saturday morning, November 5, Mrs. Roth informed Penninger by telephone it would not be necessary for him to come out as they were not interested in buying the farm. At about 7 o'clock the same morning, Penninger received his letter from the bank. This letter, in pertinent part, reads as follows:
"The First National Bank of Champaign, as Executor of the Will of Mary E. Buchan, Deceased, has the two parcels of land described below for sale subject to:
"The 80-acre tract is priced at $46,000.00; the 160-acre tract is priced at $88,000.00. Real estate brokers' commissions of 3% are recognized. Chicago Title and Trust Company policies are to be provided and conveyance will be by Executor's Deed. Possession and closing would be March 1, 1961. Ten per cent down is requested at the execution of the contract, and the balance on March 1, 1961, concurrently with the delivery of deed and possession.
"The Bank prefers, but is not obligated, to sell the 160-acre tract in Blue Ridge Township subject to a year-to-year crop-share lease of C.C. Roy, the tenant in possession.
"This letter is a solicitation of an offer to buy and is not an offer to sell, and this is not an exclusive listing with you. The Bank reserves the right to accept any offer which it deems most favorable without incurring liabilities for real estate commissions upon any other offers received, even though such other offers may meet or exceed the terms set forth above.
Your very truly, s/ W.J. Kearney"
Pace and two other real estate brokers received similar letters. Penninger upon receipt of his letter then went to the Roth farm and after talking with Mr. and Mrs. Roth secured a written offer of $555 per acre from Hershel Roth and a check for 10 per cent as earnest money. On the same day Penninger delivered the offer and check to the bank. Pace upon receiving his letter from the bank on November 5 went to the Roth farm and was informed by Hershel Roth that he had given a bid for the Buchan farm through Penninger. A discussion between Pace and Roth as to withdrawing the Penninger offer then followed. On Monday, November 7, Pace and Roth went to the bank, at which time the latter withdrew the Penninger offer and submitted an offer of $557.50 per acre which was accompanied by a check for 10 per cent. The bank accepted Roth's amended offer and entered into a contract of sale with him on November 11, 1960. Apparently Roth's only reason for withdrawing his first offer was that Penninger had misrepresented the matter by not telling him that the lowest figure for which the farm could be purchased was $550 per acre. On November 8, 1960, Penninger received a letter from Roth stating that he had withdrawn his offer for the Buchan Farm. Two days later Penninger learned from the bank that Roth had made another offer which the bank accepted. The only conflict in the evidence is whether Penninger showed the Roths his letter from the bank at the time they made their initial offer. The testimony of the Roths is that on the occasion when Penninger obtained their offer he failed to show them his letter from the bank and as a result they did not know that bids starting at $550 would be considered and for such reason felt they had been deceived. Penninger's testimony was that he showed the letter to the Roths and his testimony would appear to be corroborated by the fact that the offer which Hershel Roth signed was written at the bottom of the letter. However, regardless of which version is to be accepted, we think it wholly immaterial whether Penninger did or did not show his letter to the Roths.
From the record it appears to be undisputed that Penninger first brought Roth to the plaintiff; that Roth, in accordance with plaintiff's solicitation letter made an offer of $555 per acre; that subsequently Roth accompanied by the defendant Pace, came to the plaintiff and withdrew his original offer and submitted a new one of $557.50 per acre; that Roth was the same purchaser produced by Penninger; that Roth's first offer was not rejected by plaintiff, but was replaced by an offer which increased the price; that plaintiff received no offers for the property other than those made by Roth; and that Roth, the customer produced by Penninger purchased the property from the plaintiff. From such facts we think it obvious that Penninger produced a buyer who was ready, willing and able to buy. Under the well established rule in cases involving disputes under real estate brokers' commissions, he would be regarded as the procuring cause of the sale which plaintiff made and thus entitled to the commission. Read v. Tate, 20 Ill. App.2d 147, 155 N.E.2d 337; Doss v. Kirk, 8 Ill. App.2d 536, 132 N.E.2d 49.
However, as indicated by the trial court's memorandum opinion, shown in the abstract, its decision was based on the conclusion that under its letter of November 4, 1960, plaintiff did not list the property with Penninger or any other broker, but only solicited them to submit offers and that acceptance of the second Roth offer, although he was the purchaser produced by Penninger obligated plaintiff to pay the commission to Pace. We cannot agree that such an interpretation may properly be placed upon the plaintiff's letter. It contains no statement to the effect that it was not to be considered a listing of the property with the several brokers to whom it was sent, nor does it contain any language warranting such an inference. It merely stated that "this is not an exclusive listing with you." If plaintiff was not listing the property with the brokers to whom the letters were sent there would have been no necessity to use the word exclusive. Plaintiff in sending out the letter followed the practice common in transactions between owners and real estate brokers of giving the latter a non-exclusive listing of the property. The record clearly demonstrates that both Penninger and Pace treated plaintiff's letter as an authorization to find a buyer for the property and they acted upon such letter in the expectation of receiving a commission of 3 per cent on the sale. It would be difficult to believe that Penninger or any broker would expend time and effort in procuring a purchaser who was ready, able and willing to buy at the price asked if he understood he could be deprived of his commission by the action of his customer in raising the amount of his offer through the ...