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W.f. Smith & Co. v. Lowenstein

FEBRUARY 17, 1972.




APPEAL from the Circuit Court of Cook County; the Hon. WAYNE W. OLSON, Judge, presiding.


This is an appeal from a judgment of the Circuit Court, in a bench trial, denying a claim by the plaintiff for a brokerage commission. The plaintiff, a real estate brokerage firm, alleged that it earned such commission when it delivered to defendant-sellers a willing buyer for the real property which the defendants had for sale.

We affirm.

The facts in this case are as follows. The defendant-sellers Lowenstein and Lebo owned, in partnership, a two-flat building in Chicago. Sometime in January of 1968 they requested the plaintiff, through its president, William F. Smith, to seek a buyer for this building, and the plaintiff agreed to do so. No written agreement was ever made between plaintiff and defendant-sellers. However, one of the defendant-sellers gave undisputed testimony that there was never any question, should the plaintiff procure a buyer, about paying the plaintiff the legal commission. This defendant-seller agreed that such legal commission would be the standard fee then being charged by the Chicago Real Estate Board. There was undisputed testimony that at the time such fee was six (6%) per cent of the selling price.

Proceeding under its oral agreement the plaintiff, acting through William F. Smith, produced a husband and wife willing to buy the sellers' building. In March of 1968 a written contract was entered into by the sellers and the prospective buyers whereby the sellers agreed to sell their building together with certain personal property therein for a price of $29,000. The sellers desired $30,000, and the contract was subsequently amended, with the consent of all parties, to a price of $30,000.

Because of the inability of the buyers to secure adequate mortgage financing, the aforementioned written contract became null and void by its own terms. Further discussions then ensued between these same buyers, the sellers and William F. Smith, acting for the plaintiff, as to how the sellers' desired price of $30,000 could be met.

The plaintiff's witnesses, William F. Smith and another employee, a Mrs. Johnson, testified that they met with the sellers on April 29, 1968. They testified that an express oral agreement was reached by all parties present whereby the sellers' desired price of $30,000 would be achieved via a sale of the real property, i.e., the building alone, for a price of $28,000 and a sale of the personal property therein for $2,000 under a separate chattel mortgage agreement. According to Mr. Smith it was the sellers who suggested the use of a chattel mortgage. Smith testified that the sellers were to hold the chattel mortgage and that the sellers agreed to prepare the chattel mortgage documents.

Mrs. Johnson testified that on April 30, 1968, she gave the sellers a written real estate contract, signed by the buyers and covering the sale of the defendants' real property, i.e., the building only, for the agreed price of $28,000. This contract contained no reference to the chattel mortgage. The sellers took possession of this contract, and several weeks later their attorney notified the plaintiff that the contract was unacceptable and further that the sellers had entered into a written contract to sell the property to other buyers for $31,000.

William F. Smith testified that the first time the sellers made any mention of requiring approval of their attorney before going ahead with the sale was several days after the alleged agreement of April 29, 1968.

The sellers testified that there was a meeting with the agents of the plaintiff on April 29, 1968. At this meeting the sellers agreed that there was conversation regarding a real estate contract for $28,000 covering the real property only and a chattel mortgage for $2,000 covering the personal property. However, both sellers testified that they expressly conditioned the acceptance of any such arrangement upon approval thereof by their attorney. The testimony of Mr. Lowenstein on this matter was as follows:

"Q. Now, what else did Mr. Smith tell you?

A. He told us that he would draw another contract, and he would see to it that we would get $30,000. And we told him, "Whatever you want to do. Go right ahead and do it. We'll submit it to our lawyer which we had done in further instances, in other instances with contracts. * * *

Q. And did you sign the contract that was submitted to you by Mrs. Johnson on the 30th of April?

A. No, sir.

Q. Did your wife Mrs. Lowenstein?

A. No, sir.

Q. And did you, at any time, agree to any of the plan submitted by Mr. Smith to you for the sale of the property?

A. No, sir. I did not.

On cross-examination Lowenstein testified:

Q. * * * Mr. Lowenstein, did you ever recall having a conversation with Mr. Lebo as to whether you should take the deal of $28,000.00 for the real estate, ...

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