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Hammel v. Ruby

OPINION FILED DECEMBER 20, 1985.

PHYLLIS HAMMEL, D/B/A CENTURY 21-HAMMEL, PLAINTIFF-APPELLEE,

v.

JAMES A. RUBY ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Randolph County; the Hon. Carl H. Becker, Judge, presiding.

PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Phyllis Hammel, d/b/a Century 21-Hammel, filed a complaint in the circuit court of Randolph County against defendants, James A. Ruby and Ann Degenhardt, for payment of a brokerage commission allegedly due to plaintiff as a result of the sale of certain real estate owned by defendants, which was located in Steeleville. Following a bench trial, the court found in favor of plaintiff and ordered defendants to pay plaintiff the sum of $3,720 plus prejudgment interest.

On appeal, defendants maintain that the trial court erred in (1) determining that the transfer of the real estate in question entitled plaintiff to a brokerage commission, and (2) awarding statutory prejudgment interest.

The following undisputed evidence was introduced at trial: Prior to May 28, 1982, defendant Ruby was married to defendant Degenhardt. During their marriage, the parties borrowed $20,000 from defendant Degenhard's parents, Glenwood and Allene Degenhardt (the Degenhardts), as a downpayment on a home located in Steeleville which defendants purchased. This loan was not secured by a mortgage. Defendants borrowed the remaining $35,000 of the purchase price from the First National Bank of Steeleville (bank); and this indebtedness to the bank was secured by a mortgage on the premises purchased.

In a judgment of dissolution of marriage entered on May 28, 1982, defendants were ordered to sell the real estate in question, to discharge their indebtedness to the Degenhardts and the bank, and to divide any remaining proceeds. After unsuccessfully attempting to sell their home, defendants entered into a real estate listing contract with plaintiff. In this contract, defendants granted plaintiff the exclusive right to sell the marital home during the period from February 26, 1983, until August 28, 1983. Specifically, this contract provides in pertinent part:

"The [defendants] hereby agree to pay [plaintiff] for services rendered a commission of 6% of the agreed sale price [$62,000], subject to a minimum commission of $500.00, on procurement of a buyer who is `ready, willing and able' to purchase the premises on terms herein contained or otherwise approved by the [defendants]. The commission is due and payable upon broker procuring a `ready, willing and able' buyer or if the property is sold by the [defendants], another broker or anyone else during the time this agreement is in force. In the event of an exchange or trade [plaintiff] is permitted to represent and receive compensation from both parties. The undersigned agrees to pay [plaintiff] the above commission, based upon the last listed price, should the property be withdrawn from the market prior to expiration of this agreement."

By a warranty deed executed on August 30, 1983, and recorded on August 31, 1983, defendants conveyed the real estate in question to the Degenhardts. In consideration for this conveyance, the Degenhardts extinguished the debt owed to them by defendants and assumed the defendants' indebtedness to the bank.

The parties stipulated at trial that (1) plaintiff did not procure a "ready, willing and able" purchaser for the real estate, and (2) defendants did not withdraw the real estate from the market prior to the expiration of the listing contract. However, plaintiff maintained that she was entitled to a brokerage commission because defendants had sold the property to the Degenhardts.

At the conclusion of the proceedings, the trial court entered an order finding that defendants were obligated to pay a brokerage commission to plaintiff because defendants had "sold the real estate * * * to the [Degenhardts]" during the period of the listing contract. Applying the contractual commission rate of 6% to the agreed sale price of $62,000, the trial court ordered defendants to pay the sum of $3,720 to plaintiff. In addition, the trial court awarded prejudgment interest to plaintiff from the date of the sale of the real estate through the date of the judgment at the rate of 9% per annum.

On appeal, defendants concede that the listing contract executed by the parties created an exclusive right to sell, which stated in part that plaintiff was entitled to a commission if defendants' property was sold "by [defendants], another broker or anyone else during the time the [contract was] in force." We conclude, therefore, that plaintiff was entitled to a commission pursuant to her exclusive right to sell if defendants agreed to sell their property to the Degenhardts during the exclusive listing period, in spite of the fact that (1) plaintiff was not the procuring cause of the sale, and (2) defendants and the Degenhardts did not transform their agreement into writing until after the exclusive listing period expired. See Bolger v. Danley Lumber Co. (1979), 77 Ill. App.3d 207, 210, 395 N.E.2d 1066, 1068-69.

Defendants argue that the trial court erred in finding that they agreed to sell their property to the Degenhardts during the exclusive listing period. In support of this contention, defendants rely upon the following evidence: Defendant Ruby testified that he did not agree to sell the property to the Degenhardts during the exclusive listing period. Defendant Degenhardt testified that she determined on the day after the expiration of the exclusive listing period that the property would be transferred to the Degenhardts. Glenwood Degenhardt testified that he did not inform the defendants that he wanted to purchase the property during the exclusive listing period. He further stated that he did not complete the loan application concerning the property until the day after the expiration of that period. Both Glenwood and Allene Degenhardt testified that the only reason they purchased the property was to protect the $20,000 loan which they had made to defendants. Plaintiff testified that she continued attempting to sell the property throughout the exclusive listing period.

The record also contains the following evidence: In a June 18, 1983, letter sent to plaintiff, defendant Ruby described defendants' outstanding indebtedness to the First National Bank of Steeleville and to the Degenhardts and stated: "Due to the fact that I have been out of work since September 1982 I can no longer meet my financial responsibilities * * *. To protect their interests the Degenhards have graciously offered to take over the obligation of the [defendants' property]." Plaintiff testified that she believed the property was sold on June 18, 1983. Moreover, although she admitted that she attempted to sell the property during the period from June 18, 1983, until the expiration of the exclusive listing period, plaintiff testified that she "always" continued her sales efforts until the date of the real estate closing because an agreement for the sale of real estate might "fall through" prior to that time.

Plaintiff further testified that on July 7, 1983, she met with defendant Ruby and others at a Steeleville restaurant in order to discuss plaintiff's commission. Plaintiff stated that during this meeting defendant Ruby informed her that the property had been sold to Glenwood Degenhardt but that Mr. Degenhardt refused to pay the commission.

Defendant Degenhardt testified that prior to the execution of the listing contract her parents (the Degenhardts) had agreed to purchase the property if a realtor was ...


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