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Hackett v. Ashley

OPINION FILED MAY 3, 1979.

LAWRENCE M. HACKETT, PLAINTIFF-APPELLANT,

v.

ROGER D. ASHLEY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Hancock County; the Hon. U.S. COLLINS, Judge, presiding.

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

This action was commenced by plaintiff, Lawrence M. Hackett, a licensed Illinois real estate broker from Carthage, Illinois. He sought to recover damages for the alleged failure of defendant, Roger D. Ashley, to pay plaintiff's brokerage fee. A Hancock County jury rendered a verdict for the defendant upon which the trial court entered the judgment from which this appeal is taken. The trial court also denied plaintiff's post-trial motion and this appeal is taken from that order.

Defendant and his wife, Linda, lived in Carthage, Illinois, from January 1973 to April 1976, when defendant was plant food manager of the Hancock Service Company. In October 1975, they purchased, under contract on an installment basis, a 197-acre farm just west of Carthage from Mr. and Mrs. Ralph Adams. The contract price was $275,800 payable as follows: $3,000 down; $69,950 on March 1, 1976, and 20 annual installments thereafter of $10,342.50, the unpaid principal bearing interest at 7 percent per annum beginning March 1, 1976, and the buyers had the right to sell part of the land and also to assign the contract.

After the defendant and his wife purchased the above-mentioned land on contract, they made efforts to sell a part of it as was their intention at the time of purchase. There were approximately 157 tillable acres west of the house on the subject property, and the Ashleys immediately began attempts to sell those 157 acres while planning to retain the remainder. In fact, immediately after the contract was signed in October 1975, the tillable land was listed with J. Yongmeyer, a real estate broker, through Dutch Myers, his salesman, for a period of two weeks. Neither Yongmeyer nor Myers found a buyer.

Another attempt was made to sell the tillable acres through the offices of Howard Perry. Mr. Perry, an officer of the Marine Trust Bank in Carthage, Illinois, managed land of Mr. Blumberg, a gentleman from the Chicago area. Perry put the defendant in touch with Blumberg, who declined to purchase any of defendant's land unless he could purchase the entire farm. Two months later, in January of 1976, the defendant learned he was to be transferred from the Carthage area and consequently determined to sell the entire farm. Defendant revised his offer to Blumberg, but by this time Blumberg was not interested in purchasing the entire farm.

At approximately the same time, in January of 1976, the defendant listed the farm with Junius Ufkes, a local real estate broker. Such listing was with the understanding that no sale was to be made by Ufkes until Blumberg decided to buy or not to buy. Subsequently Ufkes, acting with an Iowa broker, produced Paul H. Boulton and Dorothy L. Boulton as prospective purchasers. The defendant testified that he became aware of the Boultons' interest in the subject property on January 12, 1976. On January 22, 1976, an agreement to assign defendant's interest in the Ashley-Adams contract to the Boultons was executed. By reason of that assignment the Boultons agreed to pay defendant and his wife $31,000 and also agreed to assume the contract. Defendant paid Ufkes a commission of $9,314 based on 5 percent on the first $10,000 and 3 percent on the balance.

It is not the assignment to the Boultons which gives rise to this lawsuit, but rather several contemporaneous discussions concerning the sale of the same real estate which took place between plaintiff and defendant. One such discussion took place on January 12, 1976. On that date plaintiff telephoned the defendant. This fact is generally agreed, but there is a dispute as to the substance of the conversation. Plaintiff alleges in his testimony that defendant authorized the plaintiff to sell the 197-acre farm for $315,000 in return for a commission of 6 percent. Defendant recollects that in that conversation plaintiff asked for listing of the 197-acre farm, and defendant said that he couldn't list the farm with plaintiff because he had two other people interested and would not sell the farm until he heard from them.

Two days later, on January 14, 1976, the plaintiff and the defendant met with two prospective buyers, Ralph and Jean Leerhoff, whom the plaintiff had located. Also present at the meeting was Mike Kelly, a long-time friend of the Leerhoffs and the plaintiff. Like the earlier conversation, the substance of what was said at this meeting is disputed. On the one hand the plaintiff, the Leerhoffs, and Mr. Kelly all testified that the defendant said he would sell the farm to the Leerhoffs, but that he wanted to talk with a then-unnamed advisor. Further, they all testified that defendant did not say that he had two other persons ahead of the Leerhoffs who were interested in the farm as buyers. On the other hand, defendant denied stating that he would sell the farm to the Leerhoffs; he also testified that he told the Leerhoffs that he had two other people who were interested in the farm and he would not commit himself to sell to the Leerhoffs until he had heard from those two persons. It was later revealed that the unnamed advisor was Howard Perry, the same person who had attempted to find a buyer in November of 1975.

A third conversation took place between plaintiff and defendant on January 19, 1976. On that date plaintiff telephoned the defendant to determine the status of the farm sale. According to the plaintiff, defendant replied that the only obstacle to the sale was plaintiff's commission. Defendant allegedly told the plaintiff that the commission was too high and he wanted more time to consider same before finalizing the sale. In defendant's version of the same phone conversation, he denied any discussion about plaintiff's commission. He offers instead that the only thing discussed was whether defendant had made up his mind regarding the sale to the Leerhoffs. Finally, in a phone conversation which took place on January 28 or 29, 1976, the defendant informed the plaintiff that he had sold the farm. It is plaintiff's theory that he produced a buyer who was ready, willing and able to purchase the farm on defendant's terms, and therefore plaintiff is entitled to the agreed commission. Defendant argues that he never agreed to pay plaintiff's commission, and that he consistently conditioned his conversations with the plaintiff on the decisions of two other prospective buyers. This lawsuit wherein the plaintiff, Lawrence M. Hackett, sought to recover a brokerage fee from the defendant, Roger D. Ashley, was the culmination of these two very different versions of events.

At the trial of this cause, Mr. Ralph Leerhoff was called as a witness for the plaintiff. During cross-examination by defendant's counsel, the following exchange took place:

"Defendant's Counsel: Do you recall my asking you if Mr. Ashley had made that statement?

Plaintiff's Counsel: Your Honor, I want to object to this at this time unless counsel will assure the court that he will connect this up.

Defendant's Counsel: I will.

The Court: All right, on the assurance that I will ...


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