136 Ill. App. 322 | Ill. App. Ct. | 1907
delivered the opinion of the court.
It is contended in behalf of appellee that under the common counts appellant could only recover by showing complete performance on his part and that in this he has failed; that by the agreement between the parties appellant was required to sell boilers in order to be entitled to the commission and that this he did not do.
The contract of employment as proposed by appellee and under which it is conceded appellant was acting, is embodied in appellee’s letter of February 11, 1905. By its terms appellee agreed to turn over to appellant certain deals upon which it had been working in Chicago, and appellant was to “work these deals.” Appellee agreed to advance him railroad fare and reasonable hotel expenses, and to pay him a commission of 50 cents per horse power, less the expenses which appellee should so advance. In a subsequent letter appellant was given the names of the parties in Chicago whom appellee wished him to see. One of these was Handel Bros., with whom, as he was advised, appellee had been negotiating and to whom it had sent “specifications and blue-prints for their job and prices on boilers.” There is a dispute as to whether appellant stopped at Toledo and received further instructions on his way from Pittsburg to Chicago. Appellee introduced witnesses who state that appellant did so stop over and the latter testifies positively that he did not.
The controversy between the parties, however, is mainly over the construction to be placed upon the contract of February 11, 1905. There is no provision in it to the effect that appellant should receive no commission unless he should personally conclude a contract with the purchaser for boilers upon terms which, in the first instance and in every particular, should be accepted by appellee without modification. The reasonable construction is, we think, that if by his efforts the buyer should be induced to purchase the type of boiler made^by appellee and a sale should be ultimately effected, appellee would be entitled to his commissions. We deem it immaterial whether the terms of the sale as finally effected should be in all respects identical with the first proposals obtained by appellant from the buyer. It is conceded by counsel on both sides that appellant was not to be entitled to the commission unless a sale was actually consummated. But the sale was consummated and in general accordance apparently with the proposition made to appellant by the buyer, although there were some modifications as to the work to be done and the price to be paid. There is nothing in the wording nor spirit of the agreement of February 11th—proposed and formulated by appellee and accepted, and acted upon by appellant—that can warrant the construction contended for by appellee to the effect that appellant was required to obtain a proposal from the buyer and then obtain appellee’s assent to that proposal in every detail in order to be entitled to the commission. Under such a construction appellee might avoid payment by merely objecting to certain details of the proposal as submitted, throw appellant aside, consummate the deal directly with the buyer on a slightly different basis, and obtain all the benefits of appellant’s services without compensating him at all. If in fact through appellant’s efforts the purchaser had been influenced to conclude that the boilers manufactured and sold by appellee were adapted to its purpose, to decide therefore to purchase them if terms could be agreed upon, when the first offer was not accepted renewed the negotiations so that an agreement was reached and the sale consummated, it is difficult to discover why the commission was not earned. It is apparent from the evidence that it was through the work done by appellant that the purchaser was induced to select appellee’s boilers. It was natural that having decided upon these boilers, the buyer should endeavor to obtain them as cheaply as possible, and that failing to get appellee to accept the trial price so offered, the buyer should renew the negotiations as it did. Instead of sending back appellant, who was still engaged in work for appellee, the latter’s president.took up the matter. This he had a right to do, but could not thereby affect appellant’s right to compensation for what he had accomplished. The president says the purchaser “wanted to know what I would do. I stayed there and figured perhaps three or four hours and the conclusion I came to was $37,500. Then he cut out the foundation and some other things and I reduced it to $35,750, and the contract was finally closed at that price.” When it is remembered that appellee had been negotiating for this sale without success for a considerable time before the deal was put into appellant’s hands, that there were rival parties figuring on the job, that appellee had been proposing to put in boilers of a type at least unsuitable and apparently impossible in the place where they were to be located, that it was at appellant’s instance that a new and practicable proposal and new specifications were submitted upon the basis of which the sale was finally made and that it required only “three or four hours” of figuring by appellee’s president to agree upon the price and conclude a transaction in which it had been unable to make any progress until appellant took hold, it is, we think, sufficiently apparent that the sale was concluded thus promptly only because of appellant’s services previously rendered. The contract of February 11th literally required 'of appellant only that he should “work the deals.” This he indisputably did. But if the phraseology be construed as requiring he should work the deal effectively we are of opinion the evidence sufficiently shows that he did so. It was natural perhaps that appellee, finding the buyer at length desirous of purchasing its type of boilers, should try to get the best price possible.
It is argued in behalf of appellee that appellant abandoned the negotiations after appellee refused the buyer’s first offer of $31,975 and cannot therefore recover commissions. Appellant’s testimony is that appellee’s officers did not tell him they would not accept the terms offered, but that they said to him at the time he submitted the proposal that it might be necessary for him to return to Chicago at the time of the final closing of the contract; that he told them he would hold himself in readiness to return at any time they might require, and that the next he heard about the contract was the telegram from appellee sent to him at Middle-town, Ohio, where he was working on a contract for appellee with a paper company in that place. The telegram told him that the contract with Handel Brothers was closed. Tie states that when he submitted the proposal of Handel Brothers to appellee he told the latter there would be some adjustment necessary on account of certain extras, and that the price of $31,975 offered by Handel Brothers through him was in excess of appellee’s original proposition of $34,900 made to Handel Brothers before the matter was put in appellant’s hands, taking into consideration the omission of superheaters and stokers. There is conflict in the evidence as to these matters, but if we accept appellee’s version in regard to them it does not tend to show that appellant abandoned the matter. Appellee’s vice-president testifies that he advised appellant to drop the matter and come back to Toledo and put in no further time on that basis. Tie states also that by the final contract of sale, appellee secured “a smaller or less price for superheaters” than it had originally proposed to take. In view of the undisputed evidence that appellant was still acting for appellee when the contract was closed and apparently subject to their orders and that he acted upon appellee’s order in leaving Chicago'when he did, the contention that appellant cannot recover because he abandoned the negotiations before the contract was finally closed, is not sustained by the evidence.
The trial court held of its own motion as follows: “Upon the facts in this case so long as the plaintiff did not continue his efforts until he procured an offer from the one party which was accepted by the other there could be no recovery upon the contract of employment.” In this we are unable to concur. The effect of what appellant did was to induce the buyer to purchase certain boilers of appellee and the buyer did so purchase at a price which appellee and the buyer were both willing to and did accept. Appellant was therefore entitled to the commission. Carter v. Webster, 79 Ill., 435—436. In Wilson v. Mason, 158 Ill., 304-310, it is said: “If the principal accepts the purchaser thus presented either upon the terms previously proposed or upon modified terms then agreed upon, and a valid contract is entered into between them, the commission is earned”; and further (page 311) : “The true rule is that a broker is entitled to his commissions if the purchaser presented by him and the vendor, his employer, enter into a valid, binding and enforceable contract.” This rule is, we think, applicable where as here the broker was employed to work up a sale to a possible buyer pointed out by the employer and does so. In Hafner v. Herron, 165 Ill., 242—246, it is said: “¡Nor is it always necessary that the purchaser should be actually introduced to the owner by the broker, provided it appears affirmatively that the purchaser was induced to apply to the owner through the. instrumentality of the broker or through means employed by the broker. It is sufficient if the sale is effected through the efforts of the broker or through information derived from him (citing cases). It is true also that where the seller consummates a sale of property upon different terms than those proposed to his agent, the latter will not be thereby deprived of his right to his commissions.”
For the reasons indicated the judgment of the Superior Court must he reversed and judgment will be entered here in favor of appellant for $805 and costs. k
Reversed and judgment here.
Me. Presiding Justice Baker dissenting.
