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Worner Agency, Inc. v. Doyle

OPINION FILED JANUARY 19, 1984.

THE WORNER AGENCY, INC., PLAINTIFF-APPELLEE,

v.

MORRIS DOYLE ET AL., D/B/A DOYLE CONSTRUCTION COMPANY, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Champaign County; the Hon. Creed D. Tucker, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

This is a contract case based upon a writing prepared by the defendants and signed by one of them in his capacity as a partner; it was unsigned by the plaintiff. Both parties moved for summary judgment and the trial court awarded summary judgment to the plaintiff and denied it to the defendants who appeal.

The plaintiff's complaint is extremely attenuated. It alleges the identification of the parties and venue, and then further alleges that "defendants agreed in writing to pay plaintiff a real estate commission upon the construction of an office for the Institute for Personality and Ability Testing." There are further allegations that defendants received the bid for the construction, completed the construction, and that the building was occupied. The commission was then demanded.

Appended to the complaint and incorporated by reference therein is the writing described above. The complete text is as follows:

"If Doyle Construction Co. should receive the bid to build an office building for Mrs. Cattell or the I.P.A.T. organization, a 3% real estate commission will be paid The Worner Agency of Rantoul on the total cost of the building. If the land is purchased separately by the buyer, this cost would not be included in the cost of the building.

The commission will be paid within 15 days of final settlement day, date of occupancy, or within 1 year of the above date, whichever occurs first."

A motion to dismiss was denied and the defendants then answered, admitting the authenticity of the document appended to the complaint and also admitting they received the bid for the structure and built it. They denied that any commission was due and set up as an affirmative defense the following:

"There was no consideration of any kind whatsoever for the agreement set forth in exhibit A of the complaint, for the reason that:

(a) The complaint does not set forth facts showing the existence of consideration in return for defendant's promise.

(b) The written agreement set forth in exhibit A fails to mention any act or promise on the part of Plaintiffs which constitute consideration for Defendant's promise.

(c) Any contract between Doyle Construction Company and the Institute for Personality and Ability Testing for the construction of an office building was not the result of any efforts of employees or agents of THE WORNER AGENCY, INC."

The plaintiff filed a general denial to the affirmative defense.

As has been indicated, both sides filed motions for summary judgment. Defendants' motion was bottomed on section 4.02(a) of the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1981, ch. 111, par. 5706). In substance, it alleged that plaintiff was seeking a commission as a real estate broker and that the act limited brokers to commissions on sales, purchases, and exchanges of real estate, none of which occurred here.

Plaintiff's motion incorporated a copy of defendants' bid on the construction of the building which included an item designated "3% Real. fee 5000." The theory apparently was that this was an indication that defendants ...


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