APPEAL from the Circuit Court of McLean County; the Hon.
WENDELL E. OLIVER, Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Realtor multiple listing.
Contract to sell real estate.
Listing information erroneous.
The Adlespergers listed their "Double B Barn" restaurant in Anchor, Illinois, with Ebach Realty which was a member of a multiple listing service. After John T. Grimes saw the business listed in a multiple listing service book at Hundman Realty, Gary Fite, a Hundman sales representative, showed him the restaurant. Later, Grimes went to Fite's home and signed an offer to purchase the restaurant for $85,000. He based his offer on the figures in the real estate multiple-listing book which gave the gross income as $240,000. Although the book stated the gross income was $240,000, it was subsequently discovered that the tax returns for 1976 and 1975 entered the gross receipts as $153,681.08 and $158,496.13, respectively.
Seven days later, Grimes signed a contract for the purchase of the restaurant and advanced $17,000 toward the purchase price. But on the scheduled closing date, Grimes declined to complete the transaction. He filed suit for return of his down payment claiming that he was misled by the Adlespergers. The Adlespergers then counterclaimed for specific performance. After the trial court found for Grimes, the Adlespergers appealed and Grimes cross-appealed.
On appeal, the Adlespergers claim the trial court's finding that they were guilty of misrepresentation (which allowed Grimes to rescind the contract and recover his down payment) was against the manifest weight of the evidence. In opposition, Grimes asserts there were several grounds for rescission of the contract. However, we find it only necessary on appeal to consider the allegedly erroneous gross income figure in the multiple listing book.
1 Section 2 of the Consumer Fraud and Deceptive Business Practices Act reads in pertinent part as follows:
"Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of any material fact, * * * are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby." (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 262.)
In American Buyers Club v. Honecker (1977), 46 Ill. App.3d 252, 361 N.E.2d 1370, the court stated that the seller's intention, or his good or bad faith, was not important, but rather that the effect that such conduct might have on the consumer was the center of focus.
2 Section 262 expressly provides that section 5(a) of the Federal Trade Commission Act (15 U.S.C. § 45 (1976)) should be considered in construing the statute. It has been held under the Federal act that a trader's representation may be unlawful even though made innocently. (L. & C. Mayers Co. v. Federal Trade Com. (2d Cir. 1938), 97 F.2d 365.) Likewise, an innocent motive is not a defense if an advertisement is prejudicial to the public interest because good faith is generally irrelevant to the need for corrective advertising. Warner-Lambert Co. v. Federal Trade Com. (D.C. Cir. 1977), 562 F.2d 749, cert. denied (1978), 435 U.S. 950, 55 L.Ed.2d 800, 98 S.Ct. 1575-76.
3, 4 In this case, Thomas Adlesperger furnished Ebach Realty with the information to be put into the multiple-listing-service book. Although Adlesperger testified that he believed gross receipts and gross income were not synonymous, he gave no reasonable explanation for the great discrepancy between the gross receipts for the tax returns of $153,681.08 and $158,496.13 and the gross income for the book of $240,000. The defendants maintain that listing the gross income as $240,000 was not grounds for rescission of the contract since Grimes did nothing to verify the figure. ...