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Beider v. Eugene Matanky & Associates

OPINION FILED NOVEMBER 22, 1977.

HAROLD BEIDER, PLAINTIFF-APPELLANT,

v.

EUGENE MATANKY & ASSOCIATES, INC., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN F. HECHINGER, Judge, presiding. MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Harold Beider, appeals from an order of the circuit court of Cook County, Illinois, granting summary judgment in favor of defendant, Eugene Matanky & Associates, Inc., and denying plaintiff's request for a stay order and injunction to enjoin defendant from proceeding to arbitration on a written real estate brokerage agreement (Ill. Rev. Stat. 1975, ch. 10, par. 102(b)). On appeal plaintiff contends that the circuit court's denial of plaintiff's request for a stay of arbitration proceedings under section 2 of the Uniform Arbitration Act (Ill. Rev. Stat. 1975, ch. 10, par. 102(b)) was against the manifest weight of the evidence.

We affirm.

On November 6, 1972, plaintiff and defendant entered into a written real estate brokerage agreement whereby defendant was employed by plaintiff as an exclusive sales agent to secure a buyer for the Arlington Apartment Hotel located at 530 Arlington Place in Chicago, Illinois. The agreement was signed by plaintiff owner and by Idel Rosenfeld as agent for defendant. Plaintiff gave defendant authority for a period of not less than three months to offer for sale, to advertise and to sell the property for a price of $625,000 or any lesser sum that plaintiff might accept.

The notice requirement of the agreement provided "that this agreement shall remain in effect for the period above specified and shall continue thereafter until either party terminates same by thirty (30) days' written notice."

On February 14, 1973, plaintiff sent a letter to Idel Rosenfeld at the office of defendant by certified mail terminating the exclusive agreement, effective February 6, 1973. This letter was received by an agent of defendant on February 16, 1973. However, on March 16, 1973, defendant procured an offer to purchase the property for $615,000. The buyer was C. Hansen as president of Cardinal Holding Corp. On March 19, 1973, plaintiff accepted this offer. A 30-day notice period, however, calculated from February 16, 1973, expired on March 18, 1973.

For reasons not revealed in the record the sale to Cardinal Holding Corp. pursuant to the March 19, 1973, contract was not consummated. However, on July 23, 1973, plaintiff and Clifford Hansen as president of Cardinal Holding Corp. executed another real estate sales contract for the property at 530 Arlington Place, Chicago, Illinois. On July 30, 1973, plaintiff and defendant signed a contract to pay defendant its commission in installments. Again, for reasons not revealed in the record, the sale pursuant to the July 23, 1973, contract was not consummated.

On November 16, 1973, defendant demanded arbitration of the question of its commission pursuant to the arbitration clause of the November 6, 1972, real estate brokerage agreement. That agreement provides in pertinent part: "Any controversy or claim arising out of or relating to the contract, or the breach thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof."

Plaintiff objected and refused to arbitrate, claiming that the agreement containing the arbitration clause had been timely revoked. Subsequently plaintiff filed this lawsuit seeking to enjoin defendant from proceeding to arbitration. When the trial court ruled in favor of defendant, plaintiff appealed to this court.

Plaintiff contends that the finding of the trial court was against the manifest weight of the evidence and that the trial court erred in denying his motion for summary judgment. Plaintiff asserts that under Nicholson v. Alderson (2d Dist. 1952), 347 Ill. App. 496, 107 N.E.2d 39, he effectively revoked the November 6, 1972, real estate brokerage agreement on February 16, 1973, when defendant received his notice of termination.

In Nicholson a real estate brokerage contract was executed on March 28, 1951, and provided for the exclusive right to sell the described property for a period of 90 days from the date of the instrument. However, on May 1, 1951, the seller revoked the contract. The court found the agreement not to be one coupled with an interest but to be one revocable at the will of the principal. The broker's authority was thus terminated upon receipt of the letter.

The brokerage agreement in the case at bar, unlike the agreement in Nicholson, contained a provision for written notice of 30 days prior to termination. Defendant appears to have received notice of termination of his authority through Idel Rosenfeld, his agent, on February 16, 1973. If such notice was proper, that notice effectuated termination of defendant's authority either on February 16, 1973, or on March 18, 1973, 30 days after defendant's receipt of plaintiff's letter of termination. Issues exist concerning proper notice of revocation of defendant's agency and the effective date of that revocation.

• 1 The sale need not be consummated for a real estate broker to recover his commission. (J.J. Harrington & Co. v. Timmerman (1st Dist. 1977), 50 Ill. App.3d 404, 365 N.E.2d 721.) The broker must show that he produced a buyer who was ready, willing and able to purchase the described property on terms specified in the real estate brokerage agreement. Sharkey v. Snow (3d Dist. 1973), 13 Ill. App.3d 448, 300 N.E.2d 279.

In the instant case defendant produced a buyer who offered to purchase the subject property for $615,000. The price listed in the November 6, 1972, real estate brokerage agreement, however, had been $625,000. Moreover, the record does not reveal when defendant produced the buyer. A single instrument shows the date of the offer to be March 16, 1973, and the date of plaintiff's acceptance to be March 19, 1973. An issue exists as to whether defendant produced a ready, willing and able buyer within the terms of the November 6, 1972, real estate brokerage agreement.

• 2 Courts> will not extend arbitration agreements either by construction or by implication. (Flood v. Country Mutual Insurance Co. (1968), 41 Ill.2d 91, 94, 242 N.E.2d 149.) Also, for an issue to go to arbitration, that issue as well as the arbitration provision must be clearly set forth in the contract between the parties. Silver Cross Hospital v. S.N. Nielsen Co. (3d Dist. 1972), 8 Ill. App.3d 1000, 291 N.E.2d 247; Harrison F. ...


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