Appeal from the Circuit Court of Cook County; the Hon. Philip
N. Benefiel, Judge, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 20, 1985.
Defendant All-Steel, Inc., appeals from a judgment of the circuit court finding that plaintiff Polytechnical Consultants, Inc., an employment agency, was entitled to an $8,100 recruitment fee from defendant. The facts are primarily undisputed and may be summarized as follows. *fn1
The complaint alleged that plaintiff submitted the resume of Floyd Borkhuis to defendant for a job opening as a die designer; that in response defendant contacted plaintiff for additional information about Borkhuis; that plaintiff thereafter helped to arrange an interview; that defendant hired Borkhuis as a die designer at an annual salary of $27,000; and that as a result, in accordance with custom and practice in the employment and recruitment business plaintiff and defendant had an implied contract under which defendant was obligated to pay plaintiff a fee of 30% of Borkhuis' first year's salary. Defendant filed an answer admitting that it hired Borkhuis but asserting that he had been referred by another agency, Professional Employment, Inc., to which defendant had already paid a recruitment fee for its services.
According to the certified report of proceedings, Don Vitullo, an employment counselor for plaintiff, testified that in October 1981 he was a counselor for Professional Employment, Inc., when he sent Borkhuis' resume to defendant with his name deleted. A copy of the resume in the record shows that it did in fact have Borkhuis' name on it. Vitullo stated that in response he received a telephone call from defendant's personnel manager Colleen Reuland, who told him "there was no interest." In November 1981, Vitullo left Professional Employment and went to work for plaintiff; he had no covenant not to compete with his former employer. In January 1982, on behalf of plaintiff, Vitullo again sent Borkhuis' resume to defendant, which was identical to the first resume he had sent except that Borkhuis' name had been deleted and plaintiff's name was stamped on top in place of Professional Employment. Vitullo said that Reuland called him on January 12, 1982, to request additional information pursuant to that "blind" resume. On February 1, 1982, Reuland asked Vitullo to set up an interview with Borkhuis, which was conducted on February 4; several days later, Reuland advised Vitullo that defendant had offered Borkhuis a job which he thereafter accepted. Vitullo transmitted that information to his superior Don Wunderle, and plaintiff then sent a bill for $8,100 to defendant for 30% of Borkhuis' $27,000 annual salary.
In addition to Vitullo's testimony, the record contains an affidavit by him dated February 22, 1983. *fn2 In that affidavit Vitullo asserted that after he sent Borkhuis' resume to defendant in October 1981, defendant had a telephone interview with Borkhuis, but no job offer was made and no further contact occurred until as an employee of plaintiff he resubmitted Borkhuis' resume to defendant in January 1982.
Don Wunderle, the former president of plaintiff, testified that he had been in the employment business for 26 years and was familiar with the customs and usages in that industry. He stated that in order for an employment agency to be entitled to a fee the agency must make the prospective employee aware of the company and the position available and must make the company aware of the applicant's qualifications; there must be an interest in hiring; and there must be arrangements made to see the applicant. Wunderle also stated that plaintiff was licensed by the Illinois Department of Labor, which he said approved the custom that the agency providing the "motivating force" is entitled to the fee.
Colleen Reuland, who was in charge of hiring for defendant, testified that after she received Borkhuis' resume from Professional Employment in October 1981 she had a telephone conversation with Borkhuis from which she determined defendant was not interested in hiring him because he was "not interested in heavy board work." On January 11, 1982, Reuland received a resume and contacted Vitullo at plaintiff's office, then had a telephone conversation with Borkhuis the following day. Vitullo thereafter arranged an interview between defendant and Borkhuis, as a result of which Borkhuis was offered a job and began working for defendant on March 8, 1982.
The record also includes an affidavit executed by Reuland, in which she stated that after receiving Borkhuis' resume from Professional Employment she interviewed him in October 1981 and found him to be acceptable for employment. Reuland further stated she again contacted Borkhuis in January 1982 and conducted a second interview. He accepted defendant's offer of employment in February 1982, and defendant paid the agreed placement fee to Professional Employment. Reuland also claimed that she had no contact with plaintiff until after the job offer was extended to and accepted by Borkhuis.
Douglas Dawson, president of Professional Employment, testified that he had been engaged in the employment business for 25 years, made thousands of placements, was familiar with Department of Labor guidelines, attended seminars and was a member of professional associations regarding employment practices, including the Illinois Association of Employment Consultants. Dawson stated that, according to Department of Labor guidelines, the employment agency which makes the first contact and sets the hiring process in motion is entitled to the fee.
At the close of the trial, the court found that Professional Employment made the first contact with defendant toward the hiring of Borkhuis by sending his resume in October 1981, but defendant initially rejected the application when it indicated "no interest"; that Borkhuis was hired by defendant following contact from plaintiff including the sending of a second resume and arranging for an interview; that plaintiff was therefore the motivating force leading to the hiring of Borkhuis; and that, under the customs and usages in the industry as established by the testimony, plaintiff was entitled to the recruitment fee.
On appeal the parties agree that defendant owed a recruitment fee to either Professional Employment or to plaintiff based upon an implied oral contract theory. They also concur that the decision as to which agency depends on the ...