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Young v. Zimmer

MARCH 4, 1965.

MAURICE YOUNG, PLAINTIFF-APPELLANT,

v.

FRED A. ZIMMER, DEFENDANT-APPELLEE.



Appeal from the Superior Court of Cook County; the Hon. WILLIAM V. DALY, Judge, presiding. Judgment affirmed.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

This is an appeal by the plaintiff from a judgment against him entered by the court without a jury. The suit involved a claim for a real estate broker's commission for the sale of property owned by the defendant.

The only question presented to this court is whether the finding of the trial judge is contrary to the manifest weight of the evidence. The testimony in the case is conflicting on practically every material point, and for that reason we will herein summarize the testimony for the plaintiff and the testimony for the defendant rather than to attempt to set forth a statement of facts.

Plaintiff testified that he was a licensed real estate broker. That in 1961 he saw signs on the property located at 17-19 East Illinois Street, Chicago, Illinois, advertising the property "For Sale Or Rent." The signs listed a phone number. The plaintiff called this number and eventually spoke to the defendant and asked the defendant for information about the property. Defendant advised plaintiff that he would like to get $65,000 for the property, and the plaintiff told the defendant that he would see his client and let defendant know whether his client would pay $65,000. Thereafter, the plaintiff telephoned his client, who was not interested at the suggested price. The plaintiff again called the defendant and asked him if he would reduce his price and defendant stated that he would reduce his price to $60,000. The plaintiff passed this information on to his client, who still refused to buy. Thereafter, plaintiff advised the defendant that he had another client, however, who was willing to pay $50,000 for the property, but defendant said he would not accept that price. The plaintiff spoke to defendant in July, 1962 and asked defendant if he would accept any less than $60,000. Defendant again said that he would not.

Plaintiff on July 12, 1962 called defendant and said he had a bona fide customer who would pay $55,000 for the property. Plaintiff testified that the defendant said, "Sell it." Plaintiff then asked defendant to confirm the conversation by letter and to state in the letter that he (defendant) would pay a brokerage commission on the sale; that the defendant said, "I will send you a letter"; that the plaintiff told the defendant to send the letter to "Maurice Young, Real Estate."

Under date of July 13, 1962, the defendant wrote to "Maurice Young Real Estate" as follows:

"Maurice Young Real Estate 18 West Chicago Avenue Chicago 10, Illinois

Subject: Property at 17-19 East Illinois Street

Gentlemen:

Confirming telephone conversations of yesterday, the writer will accept $55,000 for the property based on $15,000 down and the remainder in equal monthly payments over a period of three years, with an interest rate of 6% per annum.

This agreement to expire within thirty days from the date of this letter. Thank you.

Very truly yours, /s/ Fred A. Zimmer Fred A. Zimmer"

Thereafter, the buyer requested the legal description of the property. Plaintiff called defendant to ask for the legal description, and defendant told the plaintiff to call his attorney. Plaintiff obtained the legal description from defendant's attorney. Thereafter, an option was negotiated covering a period of sixty days for a consideration of $2,000, with the understanding that if the option was not picked up the $2,000 would be forfeited, otherwise the $2,000 would be applied to the purchase price. The plaintiff did nothing further with regard to the consummation of the deal. He learned that the property was sold and in November, 1962, called the defendant and asked for his commission. The defendant stated, "I thought that you were part of the Kane Estate." (The Kane Estate was the purchaser.) Plaintiff then called the defendant's attorney, who advised him that the defendant would not pay a commission.

Plaintiff further testified that he at no time told the defendant that he was a part of the Kane Estate, and that the commission recommended by the Chicago Real Estate Board ...


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