APPEAL from the Circuit Court of Du Page County; the Hon. JOHN
TESCHNER, Judge, presiding.
MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:
This is an action by a cooperating broker to recover a real estate broker's commission. The original five-count complaint was dismissed by the trial court pursuant to motions and supporting affidavits; plaintiff, Panorama of Homes, Inc., then filed an amended complaint of five counts, and this was also dismissed. Plaintiff appeals the dismissal.
The complaint and attached exhibits reveal the facts hereafter set forth. On March 4, 1977, defendants, Lewis University (Lewis) and L.J. Sheridan & Co. (Sheridan), a licensed real estate broker, entered into a written, exclusive listing agreement providing for a 6 percent commission. The subject of the agreement was approximately 128 acres of land located in Glen Ellyn, Illinois. The listing agreement specifically stated that Lewis was not the fee title holder to the property; that approximately 26.75 acres of property were being purchased by Lewis pursuant to a contract with defendant Catholic Foreign Mission Society, Inc. (CFMS); that Lewis had the right of first refusal as to the remaining 101.25 acres of the parcel, and that the listing agreement was subject to the continued existence of the above-described purchase contract between Lewis and CFMS.
Upon learning that the property was being offered for sale pursuant to the exclusive listing agreement, plaintiff sought and received permission from Sheridan to cooperate in the showing and sale of the property. The complaint alleges that it was further agreed between plaintiff and Sheridan that each would participate equally in any commission earned if the property were sold through the plaintiff's efforts. Thereafter, plaintiff procured from the defendant, Christian Companies, Ltd. (Christian), an offer to purchase that part of the property to which Lewis had the right of first refusal (101.25 acres). On August 8, 1977, Lewis as seller and Christian as purchaser entered into a contract for the sale of the 101.25 acres for $2,200,000; $50,000 was paid as earnest money and the balance was due no later than one year thereafter. On October 24, 1977, Lewis notified Christian that Lewis had been forced to relinquish its right of first refusal as to the property covered by the August 8, 1977, contract and therefore it had failed to acquire title. Lewis returned the earnest money check to Christian.
On November 11, 1977, Christian and defendant Metrodyne, Inc. (Metrodyne), entered into an agreement with CFMS to purchase approximately 96.577 acres which had been part of the August 8, 1977, agreement between Lewis and Christian; the price was $2,200,000 but the method and time of payment were different as was the amount of land. Plaintiff's complaint alleged that defendant James Guido had also acquired rights in this property by virtue of an assignment purportedly made by Christian to Metrodyne and Guido.
On motions filed by the various defendants (except Sheridan), the trial court dismissed all five counts of the amended complaint and plaintiff appeals. We note that plaintiff has designated Sheridan as a defendant in this action and relief is sought against it in count V only; the record does not reveal any pleading filed on behalf of Sheridan in the trial court and likewise there is no indication that it was ever served with process or defaulted; no appearance has been filed by Sheridan in this court.
1 An action should not be dismissed if it clearly appears that a set of facts could be proved under the pleadings which would entitle plaintiff to relief. (J.J. Harrington & Co. v. Timmerman (1977), 50 Ill. App.3d 404, 365 N.E.2d 721.) All facts well pleaded as well as all reasonable inferences that can be drawn therefrom must be accepted as true in considering the motion. (J.J. Harrington & Co. v. Timmerman.) Exhibits attached to the complaint become a part thereof for all purposes. (Ill. Rev. Stat. 1977, ch. 110, par. 36; Sharkey v. Snow (1973), 13 Ill. App.3d 448, 300 N.E.2d 279.) Factual matters which are contained in the exhibits and which are inconsistent with the averments of the complaint serve to negate such averments. (Sharkey v. Snow.) Any averments of the complaint which conflict with the controlling facts set forth in the attached exhibits are not deemed admitted for purposes of the motion. (Sharkey v. Snow.) Furthermore, conclusory allegations unsupported by any other factual allegations of the complaint or the exhibits attached thereto are not considered admitted for the purpose of a motion to dismiss. (Washington v. Courtesy Motor Sales, Inc. (1964), 48 Ill. App.2d 380, 199 N.E.2d 263.) We bear these principles in mind in considering the dismissal of each count.
Count I seeks $66,000 damages plus costs from Lewis; it alleges that Lewis listed certain property for sale pursuant to an exclusive listing agreement with defendant Sheridan; that plaintiff sought and received permission from Sheridan to cooperate in showing the property with any commission earned as a result of the sale of the property to a purchaser produced by the plaintiff to be shared equally by Sheridan and plaintiff. It is also alleged that plaintiff procured Christian, a ready, willing and able purchaser for the property on terms agreeable to Lewis; it further alleged that Lewis and Christian entered into an agreement for the sale of the property, a copy of the August 8, 1977, contract being attached to the complaint as an exhibit. Finally, it is alleged that Lewis had "wrongfully failed and refused" to consummate the transaction and has failed and refused to pay plaintiff's commission, which was 3 percent of the total selling price, or $66,000.
2 The exclusive listing agreement between Lewis and Sheridan stated that Lewis did not own the 101.25 acres but had only a right of first refusal; the commission provided for therein was payable only if the property was sold. Furthermore, the contract that plaintiff allegedly procured between Lewis and Christian specifically provided that "[t]he closing of this contract is subject to the Seller's ability to consummate a firm purchase agreement and closing with the Society of Foreign Missions on terms acceptable to the university." (Emphasis added.) This provision grants Lewis a unilateral choice as to whether or not it desired to conclude a sale under that contract. The principal basis for recovery under count I is the allegation that Lewis had "wrongfully failed and refused" to consummate the sale. This statement is conclusory and cannot be deemed admitted by the defendants' motion, and it is only reasonable to require more specific factual support than the conclusions set forth above in light of the contractual provisions described above. The applicable law is well stated in Burr v. State Bank of St. Charles (1951), 344 Ill. App. 332, 339, 100 N.E.2d 773, 777:
"These descriptions * * * are mere conclusions of the pleader and are not supported by the facts set out in the pleading and are therefore not admitted by the motions to dismiss."
See also Tondre v. Pontiac School District No. 105 (1975), 33 Ill. App.3d 838, 841, 342 N.E.2d 290, 293.
3 Furthermore, the exclusive listing agreement between Lewis and Sheridan and the contract of sale between Lewis and Christian described above are both attached to the complaint as exhibits. The listing agreement stated that when the property in question is sold, Lewis agrees to pay a 6 percent commission to Sheridan. The sales contract between Lewis and Christian stated that Sheridan "brought about this sale" and is to be paid a 6 percent commission; it also stated that plaintiff was the cooperating broker. The rights of a cooperating broker are defined by the agreement between the seller and the listing broker. (Smart & Golee, Inc. v. Delany (1965), 65 Ill. App.2d 60, 213 N.E.2d 27; Van C. Argiris Co. v. Caine Steel Co. (1974), 20 Ill. App.3d 315, 319, 314 N.E.2d 361, 364.) The language and intent of both of these exhibits clearly indicate that the right to recover the commissions specifically lies in Sheridan, not plaintiff. Plaintiff is not in privity of contract with Lewis and has not alleged any rights under the listing agreement as a third-party beneficiary. Under these circumstances, we further hold that plaintiff has no right to recover directly from Lewis by virtue of the allegations and theory set forth in count I, even assuming that Lewis did "wrongfully refuse to consummate" the transaction.
In count II, plaintiff seeks damages against Lewis and CFMS in the amount of 3 percent of the selling price of the property ($66,000). Plaintiff realleges the matters set forth in count I, except the wrongful refusal to consummate the sale, and further alleges, on information and belief, that after defendants Lewis and Christian executed the August 8, 1977, contract for the sale of the property, each of the parties assigned their respective rights, Lewis to CFMS, and Christian (in part) to defendants Metrodyne and Guido. It is also alleged in count II that on November 11, 1977, CFMS, Metrodyne and Christian entered into a supplemental agreement for the purchase and sale of said property in conformity with said assignments. Plaintiff further "asserts" that the supplemental agreement (exhibit D) resulted from plaintiff's services in procuring a purchaser and that plaintiff is informed and believes that the transaction has been consummated. Plaintiff predicates its right to recover against CFMS on the theory that CFMS is the assignee of Lewis and thereby assumed the obligation of Lewis to pay the commission.
Damages are sought against Lewis and CFMS in this count. Plaintiff has alleged no further facts than those pleaded in count I to form a basis for liability against Lewis and as we stated, in considering count I, plaintiff is not entitled to recover against Lewis on the basis of the allegations of count I. Since CFMS allegedly took by assignment whatever rights Lewis had, it is apparent ...