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07/22/88 Coldwell Banker v. Jack E. Jepsen

July 22, 1988

COLDWELL BANKER RESIDENTIAL REAL ESTATE SERVICES OF ILLINOIS, INC., PLAINTIFF-APPELLEE

v.

JACK E. JEPSEN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

527 N.E.2d 79, 172 Ill. App. 3d 662, 122 Ill. Dec. 707 1988.IL.1135

Appeal from the Circuit Court of Du Page County; the Hon. Anthony M. Peccarelli, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendant, Jack Jepsen, appeals from a jury verdict awarding a broker's commission of $23,500 to plaintiff, Coldwell Banker, pursuant to an exclusive listing contract entered into by the parties. On appeal, defendant contends the jury verdict was against the manifest weight of the evidence and the jury was improperly instructed. We affirm.

In November 1984, defendant contacted Jera Lloyd, a personal friend and real estate associate with plaintiff, regarding his interest in possibly selling his house located in the Brookeridge subdivision in Downers Grove. Subsequently, defendant agreed to meet Lloyd and William Kimball of the Hinsdale office of Coldwell Banker at his home. At this meeting, the parties entered into an exclusive listing contract. Before signing the contract, defendant asked if he would still have to sell the house if he changed his mind and decided not to sell. Lloyd testified she told defendant that he would not be forced to sell the house; rather, it would be taken off the market if he so desired. Kimball corroborated Lloyd's account of the conversation. Defendant's testimony regarding this conversation was similar, except he claimed either Lloyd or Kimball stated he could have the listing cancelled.

Four days after the exclusive listing contract was signed, Lloyd testified defendant telephoned her and stated he had changed his mind and did not wish to sell his house. According to Lloyd, defendant explained the plans for construction of his new home on an adjacent lot were not firming up and he was leaving the country for a few weeks.

Lloyd told defendant the house would be taken off the market. She explained to defendant that taking a house off the market meant defendant could not list it with another broker, the house would be taken out of the multiple listing service, the "For Sale" sign and keybox would be removed, and in essence, Coldwell Banker would not try to sell the house.

Defendant claimed on direct examination he told Lloyd to cancel the listing; however, on cross-examination, he equivocated as to whether he made such a request. Neither party memorialized the conversation in writing. After this conversation, Lloyd removed the house from the market in the manner she had communicated to defendant.

Two months later, Kimball became aware that defendant was showing his home to the Cavanaughs. A mutual friend of defendant and the Cavanaughs had suggested the Cavanaughs, who were interested in purchasing a home in the Brookeridge subdivision, contact defendant to see if he was interested in selling his house. Lloyd telephoned defendant to confirm Kimball's suspicions. Defendant admitted he was thinking of selling the home to the Cavanaughs and asked if he would still owe a commission to plaintiff. The next day an agent of plaintiff called defendant and told him he would be liable for the commission.

A month later, Lloyd telephoned defendant at the request of Kimball. Defendant told Lloyd he did not want Kimball to show the house; he felt plaintiff had not done anything to sell the house. Kimball also called defendant during this time period and received a similar response to his efforts to become involved in the sale of the house to the Cavanaughs. Plaintiff sent two letters to defendant indicating the listing was still in effect even though the property had been withdrawn from the multiple listing service and that a commission would be due in the event of the sale of the property. Shortly thereafter, defendant's sale of the property to the Cavanaughs was closed.

Following defendant's refusal to pay the commission, plaintiff filed a complaint alleging breach of contract. In response, defendant raised affirmative defenses alleging he revoked the contract or, alternatively, rescinded the contract. The jury was given instructions setting forth defendant's affirmative defenses. The jury verdict in favor of plaintiff was upheld by the trial Judge in response to defendant's motion notwithstanding the verdict and motion for new trial.

Defendant first argues the jury verdict was against the manifest weight of the evidence, the trial court erred in denying his motion for judgment notwithstanding the verdict, and the trial court erred in denying his request to set aside the verdict in his motion for a new trial. The gist of defendant's argument is that the evidence even when viewed in the light most favorable to plaintiff clearly established he revoked the exclusive listing ...


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