44 Ill. App. 444 | Ill. App. Ct. | 1892
Appellant having placed his property in the hands of appellees to sell at a fixed price, and for an agreed commission, he and appellees were bound to exercise the utmost good faith toward each other. Appellees were employed to sell at the price of $150,000; they were not engaged to sell for $135,000, and if any efforts were by them made to find a purchaser at the last named price, they can hardly be considered as work done in pursuance of the authority given to them.
They did not and do not claim to have .found a purchaser at $150,000, and no sale was made for that sum. The position of appellees is that they introduced appellant to Hr. Peabody and endeavored to sell the property to him; that appellant sold to Larned for $135,000, knowing, or having reason to know, that he was purchasing for Peabody. Appellees were not employed to merely introduce to appellant somebody who might upon some terms become a purchaser. It was not for such service that a commission was to be paid them.
If, having introduced appellant to Hr. Peabody, appellant had himself negotiated a sale to that gentleman at $150,000, it might well be found that appellees were the moving cause of such sale; or if, being so introduced, Mr. Peabody had purchased of appellant upon terms substantially like those given to appellees; or if it were shown that appellant, in himself negotiating and closing a sale upon terms variant from those given to appellees, had been guilty of bad faith toward them, appellees might, as the moving cause of the sale, been held to be entitled to the commissions agreed upon, or to a reasonable sum for the work and labor by them done. Pickett v. Badger, 1 C. B. N. S. 206; Topping v. Healy, 3 F. & F. 325; Simpson v. Lamb, 17 C. B. 603.
Appellees were employed to do a certain thing, viz., sell the property for $150,000; they were to be paid for this a certain sum, viz., two and one-half per cent.; if they had in five minutes accomplished the undertaking they would have been entitled to the sum of $3,150; if they did not succeed they are not entitled to anything, unless the defendant, by some act of his, prevented their success. Tombs v. Alexander, 10 Mass. 255; Kerfoot v. Steele, 113 Ill. 610; Gillespie v. Wilder, 99 Mass. 170.
Having introduced Mr. Peabody and he having declined to purchase, there must be some period of time at which appellant might deal with another broker who thought himself able to sell to Mr. Peabody. Appellees did not, by the beginning of negotiations with Mr. Peabody, terminating in his refusal to buy, acquire a lien upon any disposition he might thereafter come into to purchase the property. The point of time at which another broker might be dealt with by appellant was when Mr. Peabody surrendered his option and declined to have anything further to do with the matter. So far as appears, some time after this, Mr. Walker took him up and effected a sale to the Peabody Coal Co., which is said to be the same thing as a sale to Mr. Peabody. There is no evidence that appellees were the procuring cause of the sale to Mr. Peabody; on the contrary, appellees, having procured for him an option, the court specially found that Mr. Peabody surrendered his option and informed appellant that he, Peabotly, could not buy the property or have anything to do with it.
There is no evidence that appellees induced him to change his mind. They were not, therefore, entitled to the stipulated commissions. Easp v. Cummins, 54 Penn. St. 394; Chandler v. Sutton, 5 Daly, 112; Wylie v. Marine Bank, 61 N. Y. 415; Lipe v. Ludewick, 14 Ill. App. 372; Sievers v. Griffin, 14 Ill. App. 63.
The court, in effect, found that appellant acted in perfect good faith. Its finding that in making the contract with Earned, appellant believed Earned to he the real purchaser, aud had no suspicion that Peabody or anybody connected with him had any interest in the purchase, relieves appellant of all imputation of bad faith. Finding, as the court did as to the facts, that appellees did not make the sale, and that appellant sold to Earned supposing him to be the purchaser, appellants were not entitled to be paid the agreed commissions.
The judgment of the Superior Court will therefore be reversed and the cause remanded.
Reversed and remanded.
