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03/25/87 Otto Real Estate, Inc., v. Shelter Investments Et Al.

March 25, 1987





506 N.E.2d 351, 153 Ill. App. 3d 756, 106 Ill. Dec. 644 1987.IL.368

Appeal from the Circuit Court of Coles County; the Hon. William J. Sunderman, Judge, presiding.


Justice McCullough delivered the opinion of the court. Spitz, P.J., and Lund, J., concur.


Plaintiff filed suit to recover a broker's commission or finder's fee from the defendants with respect to the sale of certain real property. Plaintiff's motion for summary judgment on liability was granted, as was its subsequent motion for summary judgment on damages. The circuit court awarded plaintiff $121,200, which represented 6% of the total sale price.

On appeal, defendants contend that (1) plaintiff may not recover in quantum meruit because an express contract existed between the parties, (2) a material question exists as to whether plaintiff was the procuring cause of the sale or conferred a valuable benefit upon defendants, (3) a material question exists as to the value of plaintiff's services, (4) the trial Judge improperly granted summary judgment on damages based on personal knowledge rather than the evidence, and (5) the court erred in refusing to allow defendants to file a counterclaim.

There is no serious dispute over the facts. Defendant, Olen Parkhill, was a general partner in Shelter Investments (Shelter), which owned two pieces of real estate known respectively as the Charleston and Macomb apartment complexes. Parkhill was acquainted with Michael Bays, who, as a sideline, worked part-time for various real estate agents as a salesman. During the period of the transaction in question, Bays was associated with the plaintiff real estate agency, which was run by Wilmer Otto.

In the fall of 1983, Parkhill contacted Bays and told him that Shelter wanted to sell both apartment properties and that a real estate commission or finder's fee in the amount of $50,000 would be payable to Bays if he could obtain a buyer who would purchase both properties at an aggregate price of $2,900,000. Although there were slight discrepancies between the various witnesses' testimony as to the individual prices which were to be quoted for each property, there is general agreement that the asking price for the Charleston complex was to be approximately $2,500,000 and that Macomb was to be quoted at $425,000.

After this conversation, Bays contacted John Young and told him about the availability of the Charleston property. Young, on behalf of a corporation, contacted Parkhill and through protracted negotiations an agreement was reached and the Charleston property was sold to Young's corporation for $2,020,000. The Macomb complex was not sold. Subsequent to the initial contact between Young and Parkhill, both Bays and Otto made several telephone calls, transmitted documents, and arranged or participated in several meetings involving the principals to the transaction. Bays estimated that his activity in this transaction amounted to less than 10 hours.

Parkhill, however, refused to pay either Bays or Otto a finder's fee or commission because both properties were not sold under the terms of the oral agreement. Parkhill, however, acknowledged that, after a demand for payment, he offered $3,000 or $3,500 as a finder's fee, which was rejected. Parkhill also admitted that an initial draft of a purchase agreement prepared by defendants' attorney stated that the sellers' broker was Wilmer Otto.

Upon motion, summary judgment on liability was granted to plaintiff and the cause was set for trial on damages. A subsequent motion for summary judgment on damages was filed by plaintiff and was accompanied by affidavits of two experts who, in substance, offered the opinion that the customary real estate commission in Coles County, Illinois, was 6% of the sale price. A counteraffidavit was produced by defendants which opined that there was no typical fee structure for transactions of this size but did not offer any opinion as to what an appropriate fee might be in this particular case.

On the foregoing, the trial court granted summary judgment to plaintiff and awarded damages in the amount of $121,200, or 6% of the sale price.

Defendants initially contend there can be no quasi-contractual relief when an express agreement exists between the parties concerning the same subject matter that would give rise to the quasi-contract. Defendants reason that since the express agreement required the sale of both properties for the fee to accrue, plaintiff can only recover, if at all, upon proof of exact compliance with the express contract. Since ...

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