Appeal from the Circuit Court of Sangamon County; the Hon.
Richard E. Mann, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
This action arises out of a real estate listing contract for an apartment building in Chatham, Illinois. Appellants, Reavy Grady and Crouch Realtors, and Willard Kennedy, a realtor, sued to recover $14,000, alleging earned as a real estate commission, plus costs of suit. Defendant, Joyce L. Hall, was dismissed at the close of the plaintiffs' case. The trial court found for the defendants on all counts of the complaint. All plaintiffs, except Ray Unterbrink, appeal the trial court's decision.
When the defendant, James W. Hall, moved to Florida in 1976, he employed Howard McCormick to manage the Chatham property. In 1978, McCormick told the defendant that he had a prospective purchaser for the apartments. The defendant then sent McCormick a letter which authorized him to act as defendant's representative in the sale of the apartments. The letter further stated that McCormick was empowered to act in the defendant's best interest as agreed upon by the defendant and his attorney. The letter did not specifically refer to McCormick's prospective buyer. At trial, the defendant stated that this letter of authorization was for the sale to McCormick's prospective buyer and no one else.
On September 10, 1978, McCormick told the defendant that he had listed the property with plaintiff, Willard Kennedy, of Century 21 Realty. This multiple listing agreement was executed on September 2, 1978. The defendant said that he was terribly upset about the listing with Kennedy. According to the defendant, his prior understanding with McCormick was that, if McCormick's prospective buyer backed out, the defendant would find his own realtor. McCormick testified, however, that he and the defendant did discuss listing the property with a realtor, and that the defendant agreed to the listing with Kennedy. After he learned of the multiple listing contract, the defendant did not tell McCormick to cancel it, and also never personally attempted to cancel the agreement.
On September 27, 1978, McCormick informed the defendant that Kennedy had found a buyer, Ray Unterbrink, who was offering $200,000. Unterbrink's offer had to be accepted on or before noon September 28. At approximately 10:40 a.m. (EST), Kennedy and the defendant discussed Unterbrink's offer and Kennedy's commission. The defendant did not want to accept the offer. He then terminated the conversation because he wanted to discuss the matter with his attorney and accountant. Although the defendant could not reach his attorney, he did have a discussion with his accountant. After this, the defendant again talked to Kennedy. The time of this conversation and what occurred next are in dispute. According to the defendant, he told Kennedy that he still opposed the sale, but was uncertain of what action he should take. When Kennedy suggested sending a telegram of acceptance, the defendant replied that he would send such a telegram only on the condition that the sale was subject to the approval of both his attorney and accountant. Kennedy testified that the defendant accepted the offer. Kennedy supplied the defendant with the words to use in the telegram. According to Kennedy, he told the defendant that he would sign, as agent, the defendant's name on the contract of sale. Kennedy stated that the defendant put no stipulation on his acceptance, and did not inform Kennedy that the acceptance was contingent upon the approval of his accountant or attorney.
The mailgram which defendant sent to Kennedy read:
"I accept Ray Unterbrink's offer of $200,000 for 405 East Mulberry Chatham Illinois for these apartments."
The defendant stated that he considered adding the words "subject to the approval of a lawyer" to the mailgram. However, he did not do so because he had Kennedy's promise to send copies of the contract to defendant's lawyer and accountant, and because defendant did not wish to spend the money on the additional words. The defendant claimed that he never authorized Kennedy to sign the contract of sale.
Later on the afternoon of September 28, 1978, the defendant decided against selling the apartment. The primary reason for rescinding the sale was that the price was too low. The defendant testified that he called Kennedy on October 2, 1978, to cancel the sale. The defendant told Kennedy that he had finally been able to talk with his lawyer and that his attorney advised defendant against the sale. Kennedy could not recall talking with defendant on this date. Kennedy testified that his first notification of defendant's cancellation was upon receipt of a letter from the defendant dated October 9, 1978.
This letter read as follows:
"After further consideration I do not wish to accept the offer of Ray Unterbrink to buy the apartments from me at 405 E. Mulberry, Chatham, Illinois, for $200,000.
I am hopeful that you will be successful in selling the apartments closer to the listed price of $280,000 during the balance of the three months in which the property is listed with you.
During the next several weeks, I will do everything possible to bring the apartments into better condition for you to sell. My plans are to spend this weekend and most of ...