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Thorne v. Butler

OPINION FILED JUNE 7, 1976.

MAXWELL E. THORNE, PLAINTIFF-APPELLEE,

v.

WILLIAM F. BUTLER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Kane County; the Hon. ALFRED Y. KIRKLAND, Judge, presiding.

MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

This is an appeal from two orders of the trial court entering judgment for the plaintiff for a real estate broker's commission. The original judgment order was entered on October 4, 1974, and was based upon the alleged settlement agreement for 50% of the commission prayed for in the complaint. Notice of appeal was filed by defendant on October 30, 1974, and on November 12, 1974, the trial court entered a second judgment order for the full amount of the commission claimed.

Defendant contends, and plaintiff concedes, that the trial court was without jurisdiction to enter the second judgment order subsequent to the filing of the notice of appeal and that issue is not considered in this appeal.

The basic issue, therefore, presented to this court is whether there was an agreed settlement upon which the first judgment order was based.

On November 26, 1971, the defendant entered into an exclusive sales agreement with the plaintiff, a real estate broker, for the sale of defendant's property, described in the agreement as consisting of 8.9 acres, at a price of $445,000. This agreement further provided for the payment of a 5% commission to the plaintiff. On December 11, 1971, plaintiff procured a contract signed by a prospective purchaser in which the latter agreed to purchase 8.9 acres at a price of $400,000. That offer was rejected by the defendant. At that time defendant advised plaintiff that he had erroneously computed the acreage; that he had only 8.03 acres to sell and presented the plaintiff with a plat of survey of the property from which he had computed the acreage. On December 22, 1971, plaintiff tendered defendant an offer to purchase the 8.03 acres for $445,000. That offer was accepted by the defendant on that date. On December 22 the broker advised the defendant in writing that, pursuant to the agreement of the parties, the "brokerage commission * * * would be contingent upon the closing of the transaction." The sale was not consummated. The reasons for not closing the transaction are disputed by the parties. The plaintiff claims it was because the defendant did not have title to the entire 8.03 acres. The record indicates that the defendant had dedicated part of the property for a frontage road and therefore did not have the title to the entire 8.03 acres. The defendant claims that the amount of acreage was not material to the contract but that other conditions of the contract had not been fulfilled.

On March 13, 1973, the plaintiff filed suit seeking the 5% commission of $22,250. The record reveals that after the proofs were closed, an off-the-record discussion between the parties, their attorneys and the trial judge was held. It appears that at that time a settlement was reached in the sum of $11,125, although defendant argues it was only an offer of settlement. The trial judge then continued the case to September 21, 1974 "for entry of judgment."

On October 4, 1974, the defendant filed a motion to reopen the proofs and "withdraw the offer of settlement." On the same date the trial court denied defendant's motion and ruled that a settlement had been effected in the above mentioned off-the-record discussion and entered judgment for the plaintiff in the sum of $11,125, being the amount of the agreed settlement.

The defendant contends that the court erred in finding that a settlement of the lawsuit had been reached, stating that there is nothing in the record to support the settlement agreement, that there are indications that no final agreement was reached and that the order for judgment on the settlement agreement was improperly entered by summary proceedings. Defendant's contention that there is nothing in the record supporting the settlement agreement is not borne out by the record. On October 4 the court stated:

"* * * After all the proofs were in I made some statements to both counsel and to the parties saying that I felt that it was an appropriate case for settlement. All of the negotiations took place in the presence of the Court.

I did not reach the conclusion that Mr. Butler reached that he would still have an option, at some future time to decide whether he wanted to go through with it."

Later in the proceeding the court stated:

"* * * the Court is more than put out with Mr. Butler's choosing this course because I certainly felt it was a settlement without any if, ands or buts."

The court then went on to state:

"* * * I can't emphasize enough, Mike [defendant's counsel], my opinion that there was absolute finality to the settlement agreement. I even remember the final play back and forth for small amounts and the request of Mr. Butler, I believe, that it may be ten thousand or something like that instead of eleven thousand one ...


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