APPEAL from the Circuit Court of Cook County; the Hon. MYRON
GOMBERG, Judge, presiding.
MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 9, 1981.
Plaintiff, Van C. Argiris & Co. (Argiris), appeals from an order entered in the circuit court of Cook County granting summary judgment for defendant, Anwest Building Corp. (Anwest), on counts II and III of Argiris' three-count complaint. Count II sought to recover commissions allegedly owed Argiris by Anwest resulting from Argiris' position as a third-party beneficiary under a contract entered into between Anwest and Easterling Company (Easterling). Count III sought to recover the same commissions on a theory of unjust enrichment.
Argiris is a licensed real estate broker. Anwest is the owner of improved property located in Carol Stream, Illinois. In January 1962 the property had one building on it. At that time, Anwest leased the entire property with the building to Easterling for a term of 20 years for an annual rental of approximately $40,000. Easterling was given the option to renew the lease for two successive five-year periods. Easterling also had the option to purchase the property during the sixth, seventh, and eighth years of the lease term, which option expired long before the events of this case occurred. Additionally, Easterling had the option to build more buildings on the property at its own expense and to occupy those buildings for the balance of the term of the lease.
In October 1973, Easterling entered into an agreement with Argiris giving Argiris the right to act as exclusive agent and broker to procure a sublessee for the property. Pursuant to this agreement, Argiris procured Motorola, Inc. (Motorola), as a sublessee ready, willing and able to enter into a sublease with Easterling. Rather than sublet the property to Motorola, Easterling informed Anwest of Motorola's interest in leasing the property and proposed that Easterling and Anwest enter into an agreement to terminate their lease so Anwest could lease the property directly to Motorola. Argiris was apparently told of this action, and it was agreed between Easterling and Argiris that Argiris would be paid any commissions due it under the terms of their exclusive listing contract.
Thereafter, Argiris was asked by Easterling to submit a statement of amounts due Argiris for its services. At the time, Easterling's lease term still had approximately eight years to run plus the two five-year options. It appears that Anwest and Motorola had tentatively agreed to a new lease which granted possession of the property to Motorola for eight years with rent at $42,000 per year along with two five-year options to renew at that rent. In response to Easterling's request for a statement of amounts due, Argiris, on January 2, 1974, sent a letter to a representative of Easterling explaining why a statement could not be prepared at that time and indicating the approximate amount that would be due when a statement could be prepared. In pertinent part, the letter read:
"A Statement is based on the contents of a signed lease between the lessee and the lessor. Since there is no signed lease at this point in time a final Statement cannot be sent. However, our commission as Exclusive Agent representing Easterling on their building * * * in Carol Stream is 3-1/2% of the total rental reserved in the lease. If there are options, we will be due an added commission of 3-1/2% of the total rental reserved in the option if the tenants exercise their option.
Based on telephone conversations * * *, it is our understanding that Motorola intends to pay $42,000 per year on a net basis for eight calendar years. Also, the lease contains two five year options at $42,000 per year on a net basis. Based on those figures, Easterling's responsibility to Van C. Argiris & Co. will be a commission of $11,760 on the initial eight year lease plus $7,350 per option should Motorola exercise their option."
The unsigned lease the letter referred to was the lease to be entered into between Anwest and Motorola. The "options" mentioned in the first paragraph referred to options that Motorola would have under the lease it would enter into with Anwest, but there is a substantial question here as to the kind of options the letter was intended to cover.
On January 21, 1974, Anwest and Easterling entered into a lease termination agreement. One of the terms of this agreement provided:
"[Anwest] covenants and agrees to pay all broker's commissions due by [Easterling] to Van C. Argiris & Co. * * * as described in the letter of Van C. Argiris & Co. * * * dated January 2, 1974, a copy of which is attached hereto * * *."
Attached to this agreement terminating the lease was a copy of the letter set out above.
Also on January 21, 1974, Anwest entered into a new lease with Motorola. Under the terms of this lease, Motorola was granted possession of the property for eight years at rent of $42,000 per year with the option to extend the lease for two five-year periods at the same rent. Motorola was also granted the following option:
"Option to Purchase. In the event that the Tenant desires to expand its plant facilities and the Landlord shall be unwilling or unable for any reason to provide the expansion facilities sufficient for the use of the Tenant, then and in that event only, the Tenant shall have the rights at its option to either construct such plant facilities or additional buildings, structures, alterations, additions, changes, or improvements, or to purchase ...