APPEAL from the Circuit Court of Boone County; the Hon. JOHN
C. LAYNG, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 11, 1975.
This is an appeal from a judgment against the seller of real estate, entered upon a jury verdict, which awarded $5,000 to the executor of the estate of a real estate broker. The judgment arose out of an action filed by Ulis H. Garrett, the realtor, since deceased, and substituted by Hanzel L. Garrett, as executor of the estate of Ulis H. Garrett, as party plaintiff against the defendant sellers, Warren C. Babb and Violet Babb. The complaint alleged that a commission was due plaintiff as the result of his efforts in attempting to secure a purchase for the sale of the Babb farm. The issues herein presented are whether the judgment was contrary to the manifest weight of the evidence and whether the jury was improperly instructed as to the applicable law.
In 1966, the defendants orally engaged Ulis H. Garrett to secure a purchaser for the sale of their 200-acre farm in Boone County. It is agreed that the defendants employed plaintiff on a nonexclusive basis and that the plaintiff's claim for commission is based solely upon plaintiff's efforts in producing Dean Warrington, a prospective purchaser, to whom the farm in this case was eventually not sold. The defendants contend that the judgment below must be reversed either because no binding sales contract was "completed" by the buyer and seller, or alternatively because the prospective purchaser was unwilling and/or unable to buy the property upon the terms agreed to by the seller.
The testimony of Dean Warrington, the prospective purchaser, indicated that in the early part of December, 1966, he went to the Garrett Realty office in response to an advertisement for the sale of a farm which he had seen in the local newspaper. Garrett took Warrington to the Babb farm and they examined the premises and Warrington generally discussed the terms of sale with Warren Babb and Garrett. About 2 or 3 days later Warrington again visited the Babb farm, accompanied on this occasion only by his wife, and again discussed the terms of sale but this time with considerable specificity. The terms agreed upon at this meeting were a purchase price of $130,000 payable as follows: $10,000 as a down payment, $10,000 at the time of the signing of the contract, $10,000 by November 1, 1967, and yearly installment payments of $2,000 or more plus 5 3/4% interest, with the entire contract to be paid 10 years from date. Included in the purchase price were certain specialized equipment, outbuildings, lumber, storage bins and other items. On December 9 Warrington and Garrett came to the Babb farm and discussed the same terms that Warrington and Babb had agreed to previously. At this time Warrington signed his check for $10,000 payable to Garrett, which Babb had written and upon the back of which Babb had written the following restrictive endorsement:
"Any endorsement on this check constituted as earnest money on Boone Co. Farm owned by Warren Babb purchase price $130,000."
This check was endorsed by Ulis Garrett, the realtor. After Babb filled out the front and back of Warrington's check he extended his hand, shook hands with Warrington and said, "You have bought yourself a good farm." It appears that Warrington secured this initial $10,000 down payment by cashing in $14,000 in government savings bonds which he had on hand. Warrington needed $6,000 to complete the total of $20,000 to be paid at the execution of the contract, according to the terms previously agreed to. Babb subsequently presented a contract to Warrington which omitted certain agreed upon terms. Warrington refused to sign this contract and, upon complaining to Babb about the omissions, he was advised by Babb that another contract would be drafted.
Warrington contacted his bank and was unable to obtain the additional $6,000 necessary to complete the contract. He then contacted the office manager of the Production Credit Office in Boone County and was told that the matter would be brought up before the board meeting. Warrington testified that he was informed that his $6,000 loan was approved on either January 12 or 19, 1967. Warrington then testified that sometime later his attorney advised him that a second contract had been submitted by Babb and that if he (Warrington) had his finances arranged, it could be signed. He further testified that he was then advised that the farm had been sold to a third party. The testimony is unclear as to the length of time, if any, between the contract having been presented to Warrington's attorney and the date on which Warrington was informed that the farm was sold to another party. Upon learning that the farm had been sold to a third party, Warrington immediately set up a closing date but on that date no contract was signed. The record does not reveal to whom the farm was eventually sold.
Warren Babb, one of the defendants, was excluded from testifying by the court under the evidence act (Ill. Rev. Stat. 1971, ch. 51, par. 2). Defendants called Ronald Babb, Warren Babb's son, who testified that there was an express agreement between the plaintiff Garrett and defendant Babb that the commission was to be $5,000 in the event of a sale. He further testified that "the agreement was that the commission would only be earned on completion of the contract and Mr. Garrett agreed to that."
• 1 The general rule regarding brokers' commissions was stated by the Illinois Supreme Court in Fox v. Ryan (1909), 240 Ill. 391, 396, 88 N.E. 974, 976, as follows:
"Where a broker is employed to sell property by the owner, if he produces a purchaser within the time limited by his authority who is ready, willing and able to purchase the property upon the terms proposed by the seller he is entitled to his commissions, even though the seller refuses to perform the contract on his part. In such case, however, it is necessary for the broker to prove the readiness, willingness and ability of the purchaser to take the property on the terms proposed."
In Chicago Bar Association v. Quinlan and Tyson, Inc. (1964), 53 Ill. App.2d 388, 203 N.E.2d 131, reversed in part on other grounds in 34 Ill.2d 116, 214 N.E.2d 771, the court noted that it is not essential in Illinois that an executed, written agreement actually be entered into. The seller becomes bound at the moment that his terms have been met.
• 2, 3 Applying these principles to the instant facts, we note first that the jury was at liberty to either credit or discredit the testimony of Ronald Babb as to the terms of the agreement between his father, Warren Babb, as seller, and Ulis Garrett, the realtor. That defendants orally engaged plaintiff to procure a purchaser for their real estate and that they agreed to pay plaintiff a commission for his services in procuring a purchaser were facts admitted in the pleadings and, therefore, removed from jury consideration. The credibility of witnesses and the weight to be accorded their testimony must be determined by the trier of fact, and unless those findings are manifestly against the weight of the evidence, they will not be disturbed on appeal. (M.E. Stein & Co., Inc. v. Jones (1973), 13 Ill. App.3d 184, 300 N.E.2d 553.) We find that the implied finding of the jury that the parties did not agree that a commission was to be paid only upon "completion" of a contract is not contrary to the manifest weight of the evidence.
• 4 Defendants next urge that the judgment below should be reversed because plaintiff failed to show the ability or willingness of the prospective purchaser to buy upon the terms agreed to by the seller. A prospective purchaser of realty will be considered ready, willing and able to buy if he has agreed to purchase the property and has sufficient funds on hand or if he is able to command the necessary funds with which to complete the purchase within the time allowed by the offer. (William C. Bender & Co. v. Tritz (1949), 338 Ill. App. 661, 88 N.E.2d 519.) While the exact date on which Warrington was advised that his $6,000 loan, needed for payment on signing of the contract, was approved is unclear, his testimony is clear that his loan was in fact approved and that he was advised of this no later than "around the 19th of January, 1967." The jury thus had a substantial basis upon which to find that Warrington became "able" to purchase by no later than "around January 19, 1967" since by that time the total of the funds which he had on hand and the funds which he could command were sufficient to enable him to execute a contract of sale according to the terms agreed to by Babb on December 9, 1966. While there was no testimony which showed that Warrington advised Babb that his $6,000 loan had been approved, we do not believe that under the facts of this case plaintiff was required to make such a showing in order to support his recovery. No testimony was adduced at trial indicating that Babb had any grounds upon which to question Warrington's ability to purchase or that Babb ever did, in fact, question Warrington's ability. While it appears that Warrington was not able to buy the realty on December 13, the contract which Babb submitted to Warrington on that date did not contain all the terms agreed to by the parties, and due to the nature of the offer to purchase, the failure of Warrington to sign the contract submitted on December 13 did not terminate the offer made December 9. Warrington had made a ...