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Worner Agency, Inc. v. Doyle

OPINION FILED JUNE 10, 1985.

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:

Defendants appeal from an order of the circuit court of Champaign County which awarded a money judgment to the plaintiff. Although the basis for the judgment is disputed by the defendants, a fair assessment of the entire record leads to the conclusion that it was a finder's fee growing out of a construction contract obtained by defendants from a third party not involved in this litigation.

This case was before us on a previous occasion. (The Worner Agency, Inc. v. Doyle (1984), 121 Ill. App.3d 219, 459 N.E.2d 633.) After remandment, a bench trial was held on the merits with the results just described. On appeal, defendants raise several issues which may be briefly cataloged as: (1) want of consideration for the agreement for a finder's fee, (2) breach of fiduciary duty by the plaintiff, (3) violation of the Real Estate License Act, and (4) failure of plaintiff to prove it was the procuring cause of the transaction.

A brief summary of the evidence adduced at trial is in order. Eldon Worner, president of plaintiff, was a close friend, advisor, and confidant of Mrs. Alberta Cattell, the president and principal shareholder of the Institute of Personality and Aptitude Testing (IPAT). IPAT was seeking new quarters and Cattell sought Worner's advice on the matter. Eventually a tract of land was purchased and a firm engaged to draw plans and specifications for a new building. Worner advised Cattell on both matters. Bids were then sought on the construction project and Worner suggested two firms. During a discussion of potential bidders, Dr. Sam Krug, IPAT's general manager, suggested defendants, of whom Worner had no personal knowledge. He investigated them, and based upon what he learned, recommended that they be allowed to bid. Three bids were received, one from each of the firms suggested by Worner and one from defendants, who were the successful bidder.

Prior to the bidding process Worner made arrangements for a meeting between himself and Krug and one of the defendants on November 19, 1980. A set of preliminary plans was delivered, and Morris Doyle signed a statement typed on Worner letterhead, which provided:

"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 building.

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

This document provides the centerpiece for this litigation as well as the prior proceedings here and in the trial court. Worner testified that the document represented a common form of transaction when a broker brought a customer to a builder and quoted Doyle as saying that he was accustomed to such a transaction, having done it many times. Both of the other bidders had similar arrangements with Worner. Worner stated that usually such arrangements were mere oral agreements — "If we bring them a buyer they pay a finder's fee."

It further appeared from Worner's cross-examination that he received a commission on the sale of the building lot to IPAT as well as a commission on the sale of the former IPAT premises. He reviewed all the bids on the new building and determined that the Doyles' was the lowest. He reiterated that the Doyle bid did not originate with him.

Krug, IPAT's general manager, corroborated much of Worner's testimony. He stated that during the entire construction, planning, and relocation of IPAT, Cattell relied heavily on Worner's advice. He understood throughout that Worner would be compensated; although uncertain as to the exact method, he believed that IPAT would ultimately bear the cost as part of the new construction. He corroborated the fact of the meeting with Morris Doyle and the conversation regarding the agreement as recounted by Worner. Prior to that meeting he had had no contact with the Doyle firm, it being Worner's function to initiate bids. On cross-examination Krug stated that one of Morris Doyle's sons had worked on his (Krug's) house and that the suggestion that defendants be allowed to bid came from him. He understood that Worner's role was complete when the bidding process was complete. Apparently Krug himself represented IPAT when extras and credits were discussed during construction.

Morris and Grover Doyle, defendants, were called by the plaintiff Worner as adverse witnesses. Morris corroborated the events in the meeting of November 19, 1980, with Worner and Krug. He identified certain plaintiff's exhibits, one of which bore the legend "3% Real. Fee $5000." He stated that the "3%" was in Grover's handwriting but the rest was neither his nor Grover's. It "seemed" to him that he told Grover that Worner was "looking for a fee," but he could not be certain.

Grover Doyle also identified certain plaintiff's exhibits and corroborated Morris' testimony about the "3% Real. Fee $5000." Various exhibits contained different final cost figures for the project. On one of them it was shown as $169,454.98, and on that sheet appeared "chg. this on taxes-$5100-Realty?"

At another location on the same sheet appeared:

"$169,630.24 5,100. __________ 174,730."

He stated that the first note was "for tax purposes," and that the "final payment" statement showing the final cost of the job indicated $196,935.10, less a credit of $264.

Both Morris and Grover testified that they have not paid Worner a fee, that they have never told Worner that they were not going to pay a fee, and that they have never told Worner that they do not believe a fee is due under the agreement.

Worner was recalled as an adverse witness for the defendants, and, after reiteration of the events about the meeting of November 19, 1980, he was asked about ...


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