APPEAL from the Circuit Court of Kankakee County; the Hon.
ROGER A. BENSON, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment of the Circuit Court of Kankakee County dismissing the complaint of plaintiff for a real estate brokerage fee. The order stated that the complaint failed to allege the production by plaintiff of a buyer for the real estate in question under terms fixed in the listing contract. The premises were not in fact sold.
The complaint under consideration stated in its relevant parts as follows:
"1. That at all times hereinafter mentioned Orville Sharkey was a duly licensed real estate broker in the State of Illinois, maintaining office under the name of Sharkey Real Estate, 5 Edgeview Road, Momence, Illinois.
2. That the defendants, David L. Snow and Sharon L. Snow, were at all times mentioned the owners of twenty-two acres of land in Yellowhead Township, Kankakee County, Illinois, improved with two dwellings.
3. That on February 20th, 1971, the defendants did list their property known as the David Snow Property with the said plaintiff for sale under an exclusive listing contract, a copy of which is attached hereto marked Exhibit "A" and made a part hereof, for the sum of $59,500.00 cash, said exclusive sales contract to run through June 20, 1971, and did subsequently orally agree that an old farm tractor, of little value, would be sold as part of the premises.
4. That thereupon the plaintiff, Orville Sharkey, doing business as Sharkey Real Estate did advertise said property for sale in various newspapers both in Kankakee County and Cook County and did arrange for Continental Real Estate Inc. of Cook County to assist him in the sale of said premises under his direction and control and did show said premises to many prospective customers.
5. That thereupon on June 6, 1971, the said plaintiff through the assistance of Continental Real Estate Inc., did secure an offer to purchase said premises from David W. Deruntz and Mildred K. Deruntz, for the sum of $59,500.00 and did attempt to tender from June 6, 1971 said contract to the said defendants but that said defendants had left the State of Illinois and did not return until June 19, 1971, whereupon the said plaintiff informed the defendants that he had the premises sold at the listed price to the aforesaid persons, a copy being attached as Exhibit `B'.
6. That the prospective purchasers secured a Commitment for a mortgage loan pursuant to said contract, a copy of which is attached and marked Exhibit `C' and made a part heretof, on June 11th, 1971, prior to the expiration of the exclusive listing contract and that accordingly the said defendants could then and there have sold the premises for $59,500.00 cash as per the listing contract with the plaintiff.
7. That never-the-less [sic] the defendants refused to consummate said contract and advised plaintiff that they were removing the premises from the market and that accordingly the plaintiff is entitled to a six per cent selling commission to-wit: Three Thousand Five Hundred and Seventy Dollars ($3570.00)."
Exhibit "A" to the complaint, a copy of the listing agreement, bears the signatures of defendants as owners and plaintiff as realtor. It grants plaintiff the exclusive right to sell property described as the "David Snow Property" for the cash sum of $59,500 within 4 months of the February 20, 1971 instrument or until June 20, 1971. Upon such sale, defendants are required to furnish "* * * complete abstract showing good and merchantable title to the premises" or, in the alternative, "to furnish a Title Guaranty Policy". A commission of 6% of the sales price is set forth as plaintiff's compensation for bringing about the contemplated sale.
Exhibit "B" to the complaint, which is a copy of the proposed "contract for sale of real estate" obtained by plaintiff purportedly pursuant to the listing agreement, identifies the prospective purchasers as David W. Deruntz and his wife Mildred K. Deruntz, is executed and bears the date of June 6, 1971. The purchasers agree to purchase for $59,500 on the terms as set forth in the contract, property commonly known as "Yellowhead Township, Grant Park, Illinois". The contract further provides that the sale is to include numerous specified items of "* * * fixtures and personal property, if any, now on the premises, for which a bill of sale is to be given * * *". The contract recites that "* * * Purchaser has paid $5,000 Note (The note shall be redeemable after the sellers sign and after 6/22/71) to be applied on the purchase price * * *", and further states that the purchaser will pay the balance of the purchaser price, plus or minus prorations, at the time of the closing of the transaction. The contract is made expressly contingent upon the purchasers' ability to procure certain mortgage financing, and the time for closing is fixed as July 15, 1971, or 20 days following notice to the owners that the contemplated financing has been obtained. Defendants are required to give possession of the premises to the purchasers within 11 days after the closing and before July 26, 1971, and if such possession requirements are not met, the sum of $10 per day shall be paid by defendants until delivery is made.
Certain conditions appear on the back side of the contract document, some of which are as follows: Condition "a." recites that the seller is to deliver to purchaser or purchaser's agent, not less than 5 days prior to closing, a title commitment for an owner's title policy issued by Pioneer National Title Insurance Company or any other title insurance company licensed to do business in the State of Illinois in the amount of the purchase price. Condition "d." provides that if prior to closing the improvements are destroyed or materially damaged by fire or other casualty, the contract at the option of the purchaser becomes null and void and the earnest money is to be returned. Condition "e." provides that if the contract is terminated by the purchaser's fault, then at the option of the seller and upon notice to the purchaser, the earnest money is to be forfeited, but to be applied first to seller's expenses, and then to the payment of broker's commission, with the balance, if any, to be retained by the seller. Condition "j." provides that the seller must furnish at the closing a current paid for plat or survey "* * * with the improved buildings spotted therein".
Exhibit "C" to the complaint is a copy of a mortgage loan commitment dated June 11, 1971, manifesting an agreement by the "First National Bank in Harvey" to provide a mortgage loan ...