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Cabry v. Ionidas

APRIL 23, 1970.

NINO CABRY, PLAINTIFF-APPELLANT,

v.

HARRY E. IONIDAS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Rock Island County, Fourteenth Judicial Circuit; the Hon. ROBERT J. HORBERG, Magistrate, presiding. Affirmed. ALLOY, J.

Rehearing denied May 18, 1970.

Nino Cabry, a licensed real estate broker, filed an action against defendant, Harry E. Ionidas, to recover a commission alleged to have been earned through sale of defendant's house. The listing of the house which was located in East Moline specified that plaintiff was to act as broker in the sale of the house which was to be sold for $23,500, with $5,000 to be paid down and the balance to be paid in monthly installments at 6% interest. The broker was to be paid the 6% commission in the event of such sale.

On May 16, 1968, plaintiff arranged for the purchase by buyers, Mr. and Mrs. R.F. Brown, who signed a document which was called "Purchase Agreement and Receipt for Earnest Money." The form was prepared by the broker. As part of the purchase agreement, Browns gave the plaintiff-broker $100 "as earnest money deposit on the purchase of the following described property." The agreement further provided for sale of the property at $22,000 with $100 as earnest money and $3,900 additional to be paid at the time of closing. The $18,000 balance was to be carried on a contract for deed payable in installments of $192 per month with interest at 6% per annum payable monthly. Following the signature to such document by the Browns, plaintiff brought the document to defendant who also signed the agreement below words which had been prepared by plaintiff, "I hereby accept the terms and conditions above and agree to pay Nino Cabry Real Estate Agency . . . the regular rate of . . . commission."

Plaintiff acted as a broker in selling the home of the Browns prior to the time fixed for closing of the transaction with defendant. The closing of defendant's transaction with the Browns, including the cash payment and the execution of the installment contract was to take place in the office of attorney Costigan. At such closing, the purchasers were not able to pay the balance of $3,900 as down payment and thus no papers were signed nor was there any sale made as between defendant and the Browns. The parties agree that the Browns were not able to purchase the premises through payment of the down payment.

Nevertheless plaintiff-broker filed action against defendant home owner for commission for sale of the house contending that defendant had accepted the Browns as buyers by signing the "Purchase Agreement and Receipt for Earnest Money." At the trial, plaintiff objected to any evidence showing that the Browns were not able to make the $3,900 down payment and that they did not, in fact, enter into an installment contract with defendant Ionidas and close the deal. The basis of the objection was that plaintiff in his complaint had stated that after the Browns had signed, the defendant "accepted" the buyers' and written contract, a copy of which was attached as "Exhibit B." A copy of such contract was attached to the complaint. In the answer of defendant, defendant admitted the execution of the agreement in the language hereinabove quoted. Defendant admitted that the copy attached was correct, but stated that the Browns could not procure the balance of the down payment at the time of the closing and moved from the State of Illinois. Defendant counterclaimed for the $100 which had been paid to plaintiff-broker as "earnest money." The trial judge found that no commission was owing to the plaintiff, and that defendant was entitled to the $100 being held by plaintiff.

It is clear that in Illinois before a broker is entitled to his commission, he must show that he furnished a purchaser who is ready, willing, and able to buy the property upon terms set forth or agreed to by the owner (Lang v. Hand, 57 Ill. App. 134; Tackett v. Powley, 130 Ill. App. 97). As stated in Greenwald v. Marcus, 3 Ill. App.2d 495, 123 N.E.2d 139, at 499:

"It is true that an agent generally must prove that the prospective buyer was ready, willing, and able to buy at the price fixed."

Before a purchaser can be ready, willing and able to buy he must have sufficient funds on hand or be able to command the required funds needed to complete the purchase insofar as cash requirements are involved within the time agreed upon by the parties. In Adams v. Hall, 168 Ill. App. 569, where the purchaser was required to pay down $10,000 and had only $6,000 in cash and was attempting to negotiate a second mortgage on other property for $4,000, the court held that there was no showing that the second mortgage could be negotiated and it was, therefore, held that the broker had not furnished a purchaser who was able to buy.

In the case before us, the purchase agreement provided that the purchasers were to pay $3,900 at the closing with the balance of $18,000 to be set up on a 10-year installment contract. The purchasers were unable to make the $3,900 down payment, with the result that the transaction was not concluded as between the parties. It is clear from the record that the prospective purchasers who were obtained by the broker were not "able" to conclude the purchase, and, so far as that aspect of the case was concerned, the broker did not establish that he had provided a buyer or buyers who were ready, willing, and able to purchase the premises. Therefore, unless the broker was able to show that the defendant had waived this requirement and had agreed to accept the Browns as purchasers, regardless of their ability to make the payment or had waived such requirements in such a manner that would justify the conclusion that the sellers were taking a chance on the buyer being able to complete the purchase, the broker would not be entitled to recover the commission.

The basic question before the court, therefore, is whether the defendant waived the right to question whether the purchaser furnished by the broker was ready, willing, and able to buy the property when the purchaser signed the acceptance notation at the bottom of the preliminary agreement. There was no other act which defendant had done which in any way showed any waiver other than the execution of the document which was tendered to defendant by the broker. The record indicates that defendant did not know the Browns and did not know of their financial inability to purchase until they appeared for the closing. The acceptance which was signed was simply one which stated that the seller accepted the "terms and conditions" specified in the agreement. One of the conditions was that there be the cash down payment at the closing. A contract of the type which was involved in this case must, if possible, be construed to give effect to the intention of the parties (Cedar Park Cemetery Ass'n v. Village of Calumet Park, 398 Ill. 324, 75 N.E.2d 874; Katz v. Brooks, 65 Ill. App.2d 155, 212 N.E.2d 508). The instrument must also be construed most strongly as against the author, the broker (Cedar Park Cemetery Ass'n v. Village of Calumet Park, supra, at page 333). In applying such rules of construction to the agreement before us, it is clear that when the defendant signed the agreement, he was not accepting the Browns as purchasers irrespective of whether or not they could later make the cash down payment at the closing.

Obviously, in signing the acceptance notation, defendant was merely accepting or assenting to the terms of a sale arrangement which he was to enter into with the Browns. From the time of the original listing with the broker which provided for a substantial down payment of $5,000, until the time of appearance for actual closing, seller had clearly indicated that the substantial down payment (reduced to $4,000) would be required to be made. The new terms of sale had been specified by the broker in the agreement which he prepared, and it was specified that the understanding as to sale was dependent upon payment of the down payment. Any ambiguities in the understanding, insofar as it relates to the broker and the claim of the broker as against the owner, should be resolved in favor of the owner since the broker prepared the agreement. It is apparent that the seller was relying on the fact that the purchaser furnished by the broker would be ready, willing, and able to make the down payment as outlined in the preliminary purchase document. The fact that the defendants signed an acceptance of "the terms and conditions above" did not mean that the defendant in any manner waived the basic requirement that the purchaser must be able to pay the down payment.

In the case before us there was no showing that defendant was given an opportunity to investigate the Browns to determine their ability to comply with the contract. It is apparent that there was no opportunity for an investigation nor was there any showing that the owner waived the need for an investigation. Since the broker asserted a waiver by defendant, the burden was on the broker to establish that there was, in fact, a waiver of the requirement that the purchasers be ready, willing, and able to fulfill the requirement by making payment of the down payment. On the basis of the record, it is clear that there was no unqualified acceptance of the Browns as the purchasers, irrespective of whether they were able to obtain the cash funds to complete the purchase arrangement.

In Burnett v. Potts, 236 Ill. 499, 86 N.E. 258, the owner of 417 acres of land authorized a broker to sell his land for $35,000 net cash to the owner with the understanding that the broker could keep all of the sale price over $35,000. A written contract of sale was entered into between the broker and a prospective purchaser for sale of the property. The broker received $1,000 when the contract was executed and the balance of $35,000 was to be paid to the owner by March 1 of the following year. Purchaser never paid anything else on the contract other than the $1,000 down payment. After the March 1 deadline the owner sued the broker for the $1,000 which he was holding and which the prospective purchaser had paid down and the court awarded the $1,000 to the owner. The court in such case stated (at page 501):

"Appellant was not entitled to any compensation for making this sale until appellees received the $35,000, unless their failure to so receive it was the result of their own fault. That it was not the fault of appellees is determined against ...


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