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Bolger v. Danley Lumber Co.

OPINION FILED SEPTEMBER 27, 1979.

VINCENT J. BOLGER ET AL., D/B/A GLADSTONE REALTORS, PLAINTIFFS-APPELLANTS,

v.

DANLEY LUMBER CO., INC., DEFENDANTS-APPELLEES. — (ALLSTATE MOTORS, INC., ET AL., DEFENDANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND S. SARNOW, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiffs, Vincent J. Bolger and John L. Markay, d/b/a Gladstone Realtors (Gladstone), filed a multicount complaint in the circuit court of Cook County against the various defendants based on an alleged breach of an exclusive real estate listing agreement. Count II of that complaint alleged that the defendant-vendee, Danley Lumber Co. (Danley), intentionally induced the defendant-vendor, Allstate Motors, Inc. (Allstate), to breach its exclusive listing agreement with Gladstone and, thereby, wrongfully deprived Gladstone of its real estate sale's commission.

The trial court entered an order granting summary judgment in favor of Danley and the court found that there was no just reason to delay enforcement or appeal of the order. (Ill. Rev. Stat. 1977, ch. 110A, par. 304(a).) Gladstone appeals contending material questions of fact exist which preclude the entry of summary judgment.

We agree and we reverse and remand for further proceedings.

On August 1, 1973, James Gaudio, president of Allstate, executed an exclusive real estate listing contract with Gladstone. This agreement gave Gladstone, inter alia, the exclusive right to sell certain real estate — (owned by Allstate, as beneficiary of a land trust) — within 180 days at a price of $325,000 "or [at] any lesser price which Allstate agreed to accept." If the real estate was sold during this 180-day period, whether by Gladstone, Allstate or "by or through any other person," Gladstone would be entitled to a commission of "7% of the first $50,000 and 6% of the balance." The exclusive listing period expired on January 28, 1974.

Allstate sold the property to Danley for $300,000. The real estate sales contract is dated January 31, 1974. Gladstone filed suit against, among others, Danley, alleging that Danley had intentionally induced Allstate to breach the exclusive listing agreement. Danley's motion for summary judgment was granted. Gladstone appeals.

OPINION

• 1, 2 Summary judgment may be granted when "the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to * * * judgment as a matter of law." (Ill. Rev. Stat. 1977, ch. 110, par. 57; Chiero v. Chicago Osteopathic Hospital (1979), 74 Ill. App.3d 166, 392 N.E.2d 203.) The right to summary judgment must be clear and free from doubt. Donart v. Board of Governors (1976), 39 Ill. App.3d 484, 349 N.E.2d 486; Wegener v. Anna (1973), 11 Ill. App.3d 316, 296 N.E.2d 589.

• 3 The recognition that economic relationships are entitled to protection against unreasonable interference is of comparatively recent vintage. (Prosser, Torts § 129, at 927 (4th ed. 1971).) One type of interference which has been designated by the courts as a separate tort is intentional interference with contractual relations. (Graff v. Whitehouse (1966), 71 Ill. App.2d 412, 219 N.E.2d 128; Restatement (Second) of Torts § 766 (1977); Annot., 26 A.L.R.2d 1227 (1952); Prosser, Torts § 129, at 929 (4th ed. 1971).) This tort is comprised of three primary elements:

(1) the existence of a valid contract;

(2) defendant (a) intentionally and (b) without justification induces one party to breach his contractual obligations; and

(3) as a proximate result of this breach plaintiff, the other party to the contract, incurs damage.

Farley v. Kissell Co. (1974), 18 Ill. App.3d 139, 310 N.E.2d 385; 45 Am.Jur.2d Interference § 39, at 314 (1969); see generally Annot., Liability of Purchaser of Real Estate for Interference With Contract Between Vendor and Real-Estate Broker, 29 A.L.R.3d 1229 (1970).

Danley contends summary judgment was appropriately granted in this case because the facts, developed through discovery, established as a matter of law: (1) that the exclusive listing agreement between Allstate and Gladstone had expired when Danley purchased the property in question; and (2) that even if the contract was still viable: (a) it did not entitle Gladstone to a commission; and (b) Danley had no knowledge of it and, therefore, could not have acted ...


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