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Long v. Arthur Rubloff & Co.

APRIL 8, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM M. BARTH, Judge, presiding.


Plaintiff, Arthur Long, brought this action against defendant, Arthur Rubloff & Company (hereinafter Rubloff), for breach of an oral agreement of employment and for the "wrongful appropriation" of plaintiff's property. After a bench trial, judgment was entered in favor of plaintiff for $20,000. From that judgment, defendant appeals and contends that: (1) the judgment was against the manifest weight of the evidence; (2) the judgment was contrary to law; and (3) the improper admission of certain evidence constituted prejudicial error.

In a one-count amended complaint, plaintiff alleged, inter alia, that in 1967 he was employed by defendant on a month-to-month basis as a real estate broker, salesman, and solicitor; that defendant agreed to pay plaintiff the sum of $1,000 per month, plus a commission of 10% on all business brought in by plaintiff for the listing and sale of real estate; and that on February 20, 1968, defendant terminated plaintiff's employment without notice, breached the employment agreement, and "wrongfully appropriated" plaintiff's personal files and listings. *fn1 As a result of the above, plaintiff sought damages, inter alia, for 3 days' salary ($150), for failure to give 30 days' notice of termination ($1000), for 2 weeks' vacation pay ($500), for the commission due for the listing of property owned by Libby, McNeil & Libby ($9,750), *fn2 and for damages sustained due to defendant's taking of plaintiff's personal files and listings ($5,000). *fn3

In its answer, defendant admitted that plaintiff was employed by defendant as a solicitor and admitted that plaintiff was entitled to 2 weeks' vacation pay, but alleged that the employment relationship was terminable at the will of either party. Defendant admitted that it retained certain files and lists, but alleged that said files and lists were developed by plaintiff in the course of his employment and were owned by defendant as a result of the employer-employee relationship. The record reveals the following:

Arthur Long testified that he was a licensed real estate broker in the State of Illinois for the past 16 years, specializing in leasing. In March of 1967, he was approached by Thomas Curley, manager of the office leasing department at Rubloff, in regard to a possible employment relationship. Mr. Curley stated that he had recently assumed charge of the office leasing department and needed assistance from someone with experience in the field. The witness told Mr. Curley that he was in possession of a file reflecting a list of buildings with relevant leasing information. Mr. Curley was interested, and subsequently, Mr. Curley and several other men from Rubloff examined the file.

The witness described the file as being approximately 6 inches thick and containing leasing information on 40 to 50 buildings. Each building in the file contained the names of tenants, their lease-expiration dates, the name of the contact, the number of square feet occupied, the amount paid per square foot, whether the tenant contemplated expanding, and similarly pertinent information. Plaintiff stated that he had been compiling the list since 1960 and placed the value of the listings at $25,000.

After exhibiting the file to Mr. Curley, the two discussed the terms of employment. Plaintiff told Mr. Curley that he would require $1,000 per month plus 10% of the commission received on leases or sales generated through plaintiff's efforts. On direct examination, plaintiff stated that Mr. Curley made no reply to his request; on redirect examination, he stated that Mr. Curley specifically told the witness that he would receive a $1,000 a month salary and 10% of all commissions or listing fees which were generated by him. The terms of the contract of employment were never reduced to writing.

Once employed by Rubloff, plaintiff began to set up a program with Mr. Curley. He developed a leasing information form which was approved by Mr. Curley. Plaintiff would fill out the forms by interviewing downtown tenants, and disseminate the data to the appropriate Rubloff salesman or broker who would then "follow up" on the lead. In addition to disseminating information acquired while employed by Rubloff, plaintiff would also utilize the leasing data he had acquired prior to his relationship with Rubloff. Although plaintiff did not know the exact number, he stated that he had provided various leads on prospective tenants which were later consummated into leases by Rubloff brokers. He admitted that he had never received commissions on these leases, but explained that Mr. Curley told him that he would be compensated at the end of the calendar year. He admitted receiving a Christmas bonus, but did not receive a raise in salary at the end of the year as promised by Mr. Curley.

While employed by Rubloff, the witness stated that he had read an article in the newspaper reporting that Libby, McNeil & Libby (hereinafter Libby) was closing its plant in Blue Island, Illinois. He called the attorney for Libby, Mr. James Shannon, and arranged for an inspection of the plant by a Mr. Brown, a fellow employee of Rubloff, and himself. After an inspection of the plant, Mr. Brown wrote to Libby's attorney requesting that the Blue Island plant be listed with Rubloff. The witness stated that he had secured the listing in the sense that no one at Rubloff knew of the property until he brought it to their attention, and that the listing was consummated on February 19, 1968, when he spoke to Mr. Shannon and received a check for $3,000 from Libby for advertising purposes. Although the Blue Island property was subsequently sold for $1,000,000, plaintiff did not receive his commission.

On cross-examination, the witness stated that his purpose in seeking out the Libby transaction was both to show Rubloff his ability in industrial properties and to receive a 10% commission. He admitted that no one had ever told him he would receive a 10% commission on a sale generated by him, but stated that it was common knowledge in the office that if an employee brought in an outside listing which was later sold by Rubloff, he would be compensated in the area of 10% of the commission. After a short court recess, plaintiff returned to the stand and corrected his earlier testimony by stating that Mr. Curley had promised him a 10% commission at the end of the calendar year. Plaintiff was then impeached by his deposition testimony in which he stated that nobody at Rubloff ever told him that, if he obtained a listing, he would get 10% of the commission.

The day after the listing was obtained from Libby, plaintiff was discharged by Mr. Curley who stated that plaintiff was attempting to take business away from Rubloff. On the same date, plaintiff testified that his files were removed from his office. He protested the taking of his files and informed Mr. Curley that the files contained the leasing information which he brought with him to Rubloff. Mr. Curley, however, stated that the files were the property of Rubloff, and that plaintiff was not entitled to their return.

After his discharge from Rubloff, plaintiff worked for various brokerage houses, but was unable to obtain a position as a leasing agent, because the lists and files which Rubloff had appropriated were his "tools of the trade."

The next witness, James Shannon, testified that he is an attorney, and that in 1967 he handled all the real estate activities for Libby. In December of that year, he was called by plaintiff who stated that he was a broker with Rubloff and wanted to discuss a possible listing on the Blue Island property. Shannon stated that he would be interested in discussing the matter with Rubloff, but that he was also considering several other real estate brokers. Long met with Shannon in January 1968 and discussed the proposed listing. Shannon told Long that he would require a proposal from Rubloff, and to that end, made arrangements for Long and Brown to inspect the property. Prior to the meeting with Long, Shannon did not have any other contacts with Rubloff. Rubloff submitted the required proposal, and, after some negotiations, an exclusive listing agreement was entered into between Libby and Rubloff. In his opinion, Long was the originator and initial negotiator of the listing.

On cross-examination, the witness stated that Rubloff had once sold a piece of property in Hammond, Indiana, for Libby. Although this transaction occurred prior to Shannon's association with the real estate activities of Libby, he noted that a Mr. Brown had handled the earlier listing. The witness also stated that Rubloff, along with several other brokers, was under consideration previous to the telephone call from Long. At this state, however, nothing had been crystalized and every major broker was under consideration.

Donald Lebold, plaintiff's next witness, stated that he had been a real estate broker for 12 years, presently specializing in sales development and management of residential and commercial properties. For 6 years he was vice-president of a real estate firm which specialized in office leasing and development. Prior ...

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