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First Capitol Mtge. Corp. v. Talandis Constr.

OPINION FILED MARCH 29, 1977.

FIRST CAPITOL MORTGAGE CORPORATION, PLAINTIFF-APPELLANT,

v.

TALANDIS CONSTRUCTION CORPORATION, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES D. CROSSON, Judge, presiding. MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 19, 1977.

Plaintiff, First Capitol Mortgage Corporation, filed this suit against defendant, Talandis Construction Corporation, seeking a declaratory judgment and payment of a 1% brokerage fee pursuant to their written contract. Following a bench trial, the trial court entered judgment in favor of plaintiff and against defendant in the amount prayed, $19,403. Thereafter, pursuant to motion by defendant, the trial court vacated the judgment in favor of plaintiff and entered judgment in favor of defendant. When plaintiff's motion to vacate the judgment in favor of defendant and to reinstate the prior judgment in favor of plaintiff was denied, this appeal was perfected.

On appeal, defendant-appellee appeared but neglected to file a brief, although it had been given ample opportunity to do so. Without addressing the merits of the controversy, we reversed pro forma the order of the trial court due to defendant's failure to file a brief, and the cause was remanded to the circuit court with directions to reinstate the prior judgment in favor of plaintiff. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1975), 28 Ill. App.3d 684, 329 N.E.2d 412.

On appeal to the supreme court, the court noted that a uniform practice had not developed in Illinois for the disposition of an appeal in a case where the appellee failed to file a brief. After distinguishing the situation in which a court of review could properly dismiss an appeal upon the appellant's failure to file a brief, the supreme court held:

"However, the judgment of a trial court should not be reversed pro forma for the appellee's failure to file its brief as required by rule. A considered judgment of the trial court should not be set aside without some consideration of the merits of the appeal." (63 Ill.2d 128, 131, 345 N.E.2d 494.)

Consequently, the case was remanded to this court, and we will now consider the merits of the appeal. To assist us in our review of the issues raised herein and the applicable authorities, appellee has now filed a brief.

In seeking a reversal of the vacation order entered by the trial court and a remandment of the cause with directions to reinstate the prior judgment in favor of plaintiff, plaintiff presents three issues: (1) whether the findings of the trial court were against the manifest weight of the evidence when the court vacated the judgment it originally entered in favor of plaintiff and entered judgment in favor of defendant; (2) whether the terms of a written "Procurement Agreement" entered into by the parties require that a fee by paid to plaintiff by defendant; and (3) whether the principle of either ratification or waiver should operate to render a fee payable to plaintiff.

Plaintiff filed its complaint on June 7, 1971, and alleged therein that it was engaged as an agent of defendant in April of 1968 for the purpose of negotiating and procuring a loan for the construction of a multiple unit apartment complex. The legal document entered into by the parties whereby this purported agency was created and defined provides in pertinent part as follows:

"PROCUREMENT AGREEMENT

THIS AGREEMENT made and entered into this 9 day of April, 1968, by and between FIRST CAPITOL MORTGAGE CO., INC., hereinafter referred to as FIRST CAPITOL; and TALANDIS CONSTRUCTION CORPORATION, an Illinois corporation, hereinafter referred to as TALANDIS,

WITNESSETH:

That in consideration of the mutual promises herein set forth, the parties agree as follows:

1. That TALANDIS does hereby appoint FIRST CAPITOL as exclusive agent for a period of sixty (60) days after TALANDIS supplies specified exhibits, to negotiate and procure a loan in the amount One Million Four Hundred Forty Thousand ($1,440,000.00) Dollars for a period of twenty (20) years at interest not to exceed Seven (7%) Per Cent with the right to refuse any unsatisfactory commitment. No unreasonable delays will be made in pay outs. Said loan is to ...


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