Appeal from the Circuit Court of Kane County; the Hon. Patrick
J. Dixon, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
Defendant, Marshall Feld (Feld), appeals from a judgment of the circuit court of Kane County requiring him to pay $2,258, plus costs, to plaintiff, Hodgman, Inc. (Hodgman), for breach of an oral contract to purchase goods. Defendant raises three issues on appeal: (1) whether the agreement between the parties constituted a contract to purchase or a brokerage agreement; (2) whether the contract is unenforceable under the statute of frauds (Ill. Rev. Stat. 1981, ch. 26, par. 2-201(1)), and; (3) whether plaintiff has established a prima facie case of breach of contract.
Pursuant to Supreme Court Rule 323(d) (87 Ill.2d R. 323(d)), the parties submitted an agreed statement of facts in which the following facts were established. Testifying as an adverse witness pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 60, now codified at Ill. Rev. Stat. 1981, ch. 110, par. 2-1102), defendant stated that in early 1981 he visited plaintiff's warehouse in Aurora and examined 2,258 pairs of rubber cut-off boots which he planned to sell to a third person, Raymond Buckner. Prior to that date, defendant had visited the warehouse on several occasions and had taken samples of the boots, apparently to show his intended buyer. Defendant negotiated with plaintiff for the purchase of said boots at $1 per pair. The boots were to be sold to Mr. Buckner for $1.50 per pair. In June 1981 an employee of Mr. Buckner picked up the boots from plaintiff's warehouse, and paid plaintiff by a check issued by Mr. Buckner in the sum of $3,388. At no time did defendant complain to any officer or agent of plaintiff about the quality of the merchandise.
Defendant also testified that he had conducted business with the plaintiff several times in the past. On some of these occasions, he directed the ultimate buyer of the goods to pick up the goods and pay Hodgman directly. On other occasions, Feld arranged to pick up the goods and himself pay Hodgman. In the price quoted to his ultimate customer, Feld usually figured in the fees or profit to be realized by him on the transaction. On one particular occasion, Feld purchased 3,058 pairs of boots from plaintiff for Ventures Four, a corporation owned by defendant. Said corporation paid plaintiff directly for the goods. On another occasion, goods were purchased by Feld's company for a sum certain and then resold to a third person, who in turn paid plaintiff for the goods. In that instance, Feld received his profit directly from Hodgman.
Ronald Foster, president of Hodgman, testified he was contacted in 1981 by defendant who agreed to purchase 2,258 pairs of rubber cut-off boots. Mr. Foster stated it subsequently developed that Feld had resold the boots to Mr. Buckner with the understanding that Feld would receive the overage above the $1 per pair price quoted and accepted by Feld. Mr. Foster testified that Feld verbally agreed to guarantee the check of Mr. Buckner and that despite numerous requests by Mr. Foster, said check was not honored by Mr. Buckner, nor was it guaranteed by defendant. Mr. Foster stated he at no time agreed to pay commission to Feld, but he did agree that if Feld had resold the goods, any sum realized over and above plaintiff's asking price would be paid to Feld directly by plaintiff. The check from Mr. Buckner represented plaintiff's asking price of $1 per pair plus Feld's profit of $0.50 per pair.
Mr. Foster also testified to a course of dealing whereby Feld either purchased the goods or agreed to have them purchased by a third party, and received the difference between plaintiff's asking price and the price for which the goods were resold. Foster testified Feld originally agreed to purchase all distressed merchandise that plaintiff had, if a price could be agreed upon between plaintiff and Feld. A letter from defendant's attorney, dated September 4, 1981, was admitted into evidence as plaintiff's exhibit No. 1. The letter stated that defendant had tried to return the goods to Hodgman because they were defective, that Hodgman would not accept their return, and that the goods would therefore be sold to compensate defendant for storage charges which had accumulated in the amount of $3,000.
Foster admitted on cross-examination that no written contract was ever executed by the parties for the purchase of the goods in question. No purchase order was ever received from defendant, and all agreements between the parties were oral. Foster could not recall ever billing Feld's company for the goods in question.
At the close of plaintiff's case, defendant moved for a directed judgment on the ground that plaintiff failed to prove the existence of a contractual obligation to pay for the goods and because any contract which may have existed violated the Statute of Frauds. (Ill. Rev. Stat. 1981, ch. 26, par. 2-201(1).) The motion was denied.
Defendant was called as a defense witness. He testified neither he nor his company ever agreed to purchase the goods in question from plaintiff. He testified he never signed any agreement to purchase the goods, never offered to pay for any of the goods or guarantee Buckner's check, and that he never received nor took possession of the goods. Feld stated he was never billed, and neither he nor his company ever exercised any dominion or control over the goods. He first learned of a problem with the transaction when he was contacted over the phone by Foster. It was Feld's understanding that he was acting as a broker or a middleman for Hodgman, and that plaintiff had in fact agreed to pay him a commission for the goods purchased by Mr. Buckner.
The court entered judgment for the plaintiff for the purchase price of the goods ($1 per pair), plus costs.
The parties do not dispute the fact that a contract was formed between them. Rather, they dispute the nature of the contract and its terms. Defendant contends the evidence established a brokerage agreement under which he agreed only to sell the goods in question for at least $1 per pair, with any amount over $1 to be paid to him as commission. He maintains he was therefore not liable for payment of the purchase price of the goods. Plaintiff, on the other hand, argues that defendant verbally agreed to purchase the cut-off boots regardless of whether the boots were resold by defendant. Thus, he contends, and the circuit court held, defendant was liable for this amount when the sale to Mr. Buckner fell through.
• 1-4 Whether an oral contract exists, its terms and conditions, and the intent of the parties are questions of fact to be determined by the trier of fact. (Emmenegger Construction Co. v. King (1982), 103 Ill. App.3d 423, 431 N.E.2d 738; Panko v. Advanced Appliance Service (1977), 55 Ill. App.3d 301, 371 N.E.2d 3.) Under general principles of contract law, where an agreement is indefinite, the courts> will look to and adopt an interpretation which the parties themselves have placed on it. (Board of Trade v. Dow Jones & Co. (1982), 108 Ill. App.3d 681, 439 N.E.2d 526; Burgener v. Gain (1981), 101 Ill. App.3d 699, 428 N.E.2d 722.) Evidence of such an interpretation may be seen in the parties' contemporaneous or subsequent acts or conduct. (In re Marriage of Whetstone (1980), 87 Ill. App.3d 164, 409 N.E.2d 41.) In determining whether a certain relationship exists between the parties, the court must look to the substance rather than the form of the transaction, and the categorization given to a relationship by the interested parties is not conclusive of the nature of the relationship. Abt v. Department of Revenue (1966), 34 Ill.2d 324, 215 N.E.2d 243.
• 5-10 A broker's contract is governed by the law applicable to ordinary contracts, in that the parties' minds must meet through offer and acceptance and the contract must be definite in its terms. (Arthur Rubloff & Co. v. Drovers National Bank (1980), 80 Ill. App.3d 867, 400 N.E.2d 614; Bau v. Sobut (1977), 50 Ill. App.3d 732, 365 N.E.2d 724.) Under a brokerage agreement, the parties agree that one party shall be employed as an agent to make bargains and contracts between other persons in matters of trade, for compensation. (Sunderland v. Day (1957), 12 Ill.2d 50, 145 N.E.2d 39.) A broker "bargains or carries on negotiations in behalf of his principal as an intermediary between the latter and third persons in transacting business relative to the acquisition of contractual rights, or to the sale or purchase of any form of property, real or personal, the custody of which is not entrusted to him for the purpose of discharging his agency." (Village of Itasca v. Luehring (1954), 4 Ill.2d 426, 431, 123 N.E.2d 312; City of Chicago v. Barnett (1949), 404 Ill. 136, 88 N.E.2d 477.) No particular words are necessary to engage the services of a broker; rather, the essential requirement is that a broker act in that capacity with the consent of the principal. (Plastics & Equipment Sales Co. v. DeSoto, Inc. (1980), 91 Ill. App.3d 1011, 415 N.E.2d 492.) The principal's consent to an individual acting as its broker can be manifested either expressly or by implication from the parties. (Plastics & Equipment Sales Co. v. DeSoto, Inc.) An implied contract exists in the situation where a property owner knows that the broker is endeavoring to effect a sale and expects to receive compensation for his services, and where the owner encourages the broker to aid in the sale and leads the broker to believe he will receive compensation. Arthur Rubloff & Co. v. Drovers National Bank.
In this case the parties both rely upon evidence of their prior dealings as support of their respective positions. However, it is clear from the evidence that the course of dealing between the parties included both an agency-type relationship ...