delivered the opinion of the court:
Defendant Cheleo Corporation (Cheleo) appeals from a judgment entered on a verdict for plaintiff in his action to recover a real estate broker’s commission allegedly for obtaining a tenant for Chelco’s property. The issues presented are that (1) the verdict was against the manifest weight of the evidence; (2) the jury was improperly instructed as to (a) plaintiff’s burden of proof in establishing his authority and (b) the definition of procuring cause; and (3) the trial court erred in permitting plaintiff to impeach his own witness on the issue of procuring cause. In a cross-appeal, plaintiff contends that the trial court erred (1) in denying leave to amend his complaint by adding a claim for a monthly management commission allegedly owed under his employment contract; and (2) in denying him prejudgment interest.
Plaintiff’s original complaint alleged in substance that he was a licensed real estate broker associated with defendant Building Management Corporation (Building Management), 1 which acted as agent of Cheleo, and that he secured the Walter Frank Organization, Inc. (Walter Frank), as the tenant for Chelco’s property located at 3201 West Randolph, Bellwood, Illinois (the building) — for which he was entitled to a commission. The record also indicates that Building Management is a real estate management corporation and that Cheleo is a real estate holding company having title to several buildings.
Plaintiff testified that in October 1973 he was hired by Richard M. Ryan, then president of Building Management, and Wallace E. Carroll to administer and manage Building Management property — which included finding tenants and buyers; that he was initially paid a salary, but upon becoming president of Building Management and during his tenure in that post, he was also to be paid a percentage from rentals and sales; that Carroll authorized him to find a tenant for 50,000 square feet of available space in the building; that with Carroll’s authorization in January 1974, he placed a sign on the building with his name and telephone number, which replaced another sign showing Building Management and Ryan’s name and telephone number; that he placed an advertisement in the Sunday Chicago Tribune, distributed circulars, and made several personal contacts, and in January 1974 obtained a tenant named Stratton Hats for a portion of the building — for which he was paid a commission; that on July 23, 1974, he received a telephone message from Joyce Lowry, his secretary, concerning an inquiry about the building from Edward McGrath of Walter Frank, and he set up an appointment with McGrath to view the property on July 26; that on that date he gave McGrath and John Cranfill — Walter Frank’s director of manufacturing — a tour of the property, during which McGrath indicated that Walter Frank would require an additional 25,000 square feet; that he gave McGrath a set of floor plans for the building and, after the tour, wrote a letter to McGrath and Cranfill containing information on the property and enclosing a circular concerning the building; that after confirming with Carroll and Morrow Garrison that additional space was available, he told McGrath that 75,000 square feet was rentable and thereafter made several other follow-up telephone calls; that he met with McGrath at Walter Frank’s facility less than two weeks later to determine the feasibility of Walter Frank’s renting the space in the building and confirmed McGrath’s continued interest; that approximately three weeks after this final contact with McGrath, plaintiff was terminated by Building Management; and that, subsequently, upon learning a lease had been signed between Walter Frank and Cheleo, he wrote a letter to Ryan, dated February 24, 1975, claiming a commission for procuring that lease.
Joyce Lowry testified that on July 24, 1974, she was in the employ of Building Management when McGrath called concerning the property and asked for plaintiff; that since plaintiff was not in, she described the building and took a message for him; that she referred McGrath to George Holz, who was not employed by Cheleo, for a tour of the building — all of which actions plaintiff had authorized; and that she gave plaintiff the message upon his return.
Edward McGrath testified that in 1974, while employed by Walter Frank, it was his sole responsibility to find a new location for that organization, and he first learned about the property in question during the spring of 1974 when he saw a sign on the building with Ryan’s name and telephone number on it, which he then called and asked for Ryan; that he did not see the Tribune advertisement nor did he recall telling an investigator in 1976 that he first heard about the building through the advertisement; that he was shown the building twice before contacting Ryan— the first time by Holz, who gave him no documents; that he met Holz 3 to 4 months before he met plaintiff; that 3 or 4 months later, he again contacted Building Management about the building, and a woman made arrangements for plaintiff to give McGrath a tour; that plaintiff picked him up, showed him the building, and sent him a confirming letter dated July 26, 1974; that plaintiff gave him no blueprints of the building and never informed him that an additional 25,000 square foot area was available; that several months later, he again called Building Management and asked for plaintiff but, upon being informed plaintiff was no longer with Building Management, he was transferred to Ryan.
Morrow Garrison testified that he did not recall when the sign in question was placed on the building or taken down, nor did he know what address and phone number were on the sign; that he had not seen the sign, but when Holz told him about it in the summer of 1974, he (Garrison) ordered plaintiff to remove it because it was unauthorized; that when it was removed, he saw Ryan’s sign underneath; that Ryan took McGrath on a third tour of the building during which Ryan called Garrison, who told Ryan that an additional 25,000 square foot area was available for leasing; that plaintiff never discussed with him the leasing of the property to Walter Frank nor had he (Garrison) received a copy of the July 26, 1974, confirming letter; that he generally discussed the availability and negotiability of space in the building but denied talking to plaintiff about leasing 75,000 square feet to Walter Frank; that plaintiff had indicated to him the possibility of obtaining a tenant for the building but declined to tell him who it was; that the lease negotiations with Walter Frank commenced in September or October of 1974, and the lease was signed December 17 or 18, 1974; that in negotiating the lease, he conferred with Thomas Carroll — president of Cheleo — and Wallace Carroll concerning its terms; and that final approval of the lease provisions was made by Thomas Carroll.
Wallace Carroll testified that he gave no authority to plaintiff to put up a sign or to find a tenant for the building and that he made no promise to pay plaintiff a commission for finding a tenant or to pay him a percentage of rents on various properties.
The jury rendered a verdict against Cheleo for $22,038.01, upon which judgment was entered and this appeal followed.
At the commencement of trial, the trial court had denied plaintiff leave to amend his complaint to add a count (count II), asserting a claim for recovery of a monthly management commission. The court did, however, allow plaintiff to amend his complaint to allege an oral contract of employment between the parties and the terms and conditions thereof, but the prayer for relief was limited to recovery of the brokerage commission alleged in count I. The trial court denied the post-trial motion of plaintiff for prejudgment interest, and plaintiff has cross-appealed from the orders denying motions for leave to amend (count II) and for prejudgment interest.
Opinion
Defendant first contends the jury’s finding that plaintiff was the procuring cause of the lease between Cheleo and Walter Frank was against the manifest weight of the evidence.
In general, a broker is entitled to a commission if he is the procuring cause of a consummated transaction which he was employed to negotiate (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980),
Conversely, a broker also may become the procuring cause on the basis of the negotiations he conducts, even though he does not take part in bringing the parties together initially. (See Burns v. Sullivan (1915),
In light of the above principles and of the record before us, we conclude that the jury’s finding that plaintiff was the procuring cause of the Walter Frank lease was not against the manifest weight of the evidence.
The first significant action of plaintiff in the chronology leading to the signing of the lease in question was his placement of an advertisement for the building in the Sunday Chicago Tribune Industrial Real Estate section in 1974. In our view, the jury could have found that the advertisement facilitated McGrath’s contact with Cheleo. Although McGrath testified at trial that his first contact with Cheleo was through the sign on the building, a statement he previously had given to an investigator that he first learned about the building through an advertisement in the Tribune was admitted in evidence. Moreover, because McGrath’s sole function as an employee of Walter Frank was to find a new location for its manufacturing plant, the jury could reasonably have inferred that McGrath saw the advertisement even though it may not have been his initial contact.
Plaintiff’s second crucial action was his placement of a sign on the building in January 1974. The significance of such action is apparent, inasmuch as McGrath testified that his first contact with Building Management was from the sign. Plaintiff testified that he installed his sign and removed the sign containing Ryan’s name and telephone number. That testimony was corroborated somewhat by the evidence that Ruilding Management had recently moved, which made the address and telephone number on the old sign incorrect. McGrath testified, on the other hand, that he first learned about the sign in the spring of 1974; that it contained Ryan’s name and telephone number; and that when he called the number on the sign, a woman answered and referred him to Holz. Other testimony indicated, however, that the phone was answered by Joyce Lowry, plaintiff’s secretary, who testified that the call was for plaintiff and because he was not there that she referred McGrath to Holz.
In contrast to the above testimony concerning the sign was that of George Holz. He expressed the belief that plaintiff’s sign was in place for 4 to 6 weeks. This was based on his recollection of first noticing it in July and of seeing the Ryan sign when he showed the building to McGrath. Moreover, Garrison testified that he had no first-hand knowledge as to when the sign was put up or taken down; but he did know that when it was removed, Ryan’s sign was underneath. Garrison’s testimony regarding the sign thus conflicted with that of Holz, who testified that both plaintiff’s and Ryan’s signs were visible simultaneously. Thus, the jury could have reasonably inferred that the Ryan sign, with Ruilding Management’s old address and telephone number on it, was not on the building in January 1974 or that it was completely obscured by plaintiff’s.
Additionally, it appears that the jury could have concluded that plaintiff’s sign was authorized. Although Garrison testified that he had not authorized plaintiff to place the sign on the building, Wallace Carroll could not recall having any such discussion with plaintiff and thus did not specifically contradict plaintiff’s position. Plaintiff testified that Carroll had told him on three occasions to put up a sign, and there was no dispute that either Carroll or Garrison had the authority to order plaintiff to do so. On those facts, the jury was warranted in believing that plaintiff installed the sign which attracted McGrath’s attention.
The third significant event was McGrath’s July 23 telephone call. Lowry stated that McGrath asked for plaintiff, not Ryan, and that she described the building and referred McGrath to Holz since plaintiff was out of town. Although McGrath testified that he met Holz in the spring of 1974 — some 3 to 4 months before meeting plaintiff — Holz stated that he showed the property to McGrath in the late spring or early summer, and the record indicates that Garrison said Holz told him that he showed the building on June 10 or 15. In any event, despite the differences between the parties’ account of the events, it seems clear that the Holz tour of July 23, as authorized by plaintiff, was a significant factor in the procurement of the lease.
Furthermore, the jury also could have found that the Holz tour does not support Chelco’s claim of being the procuring cause. McGrath testified that Holz gave him no documents, and he could not recall if Holz gave him rental information. He also stated that Holz told him 75,000 square feet — the space McGrath sought — was not available. Holz testified that he had been told to refer inquiries to Cheleo, which he did by telling McGrath to contact Garrison. Moreover, the record indicates that McGrath contacted plaintiff for a second tour of the building, and there is no indication of any contact between McGrath and Garrison in this regard.
Plaintiff’s other activities concerning the building are also important on the question of procuring cause. On July 23, plaintiff called McGrath to arrange an appointment for July 26 to tour the building and to discuss a lease. Thereafter, plaintiff picked up McGrath and Cranfill at Walter Frank’s offices and conducted them on a one-hour tour during which he answered questions concerning various aspects of the building, including rental and sales information. He also told them he would confirm the availability of the additional 25,000 square feet they needed and that, at the conclusion of the tour, he gave them a set of floor plans. Later, plaintiff confirmed the tour by sending them a letter, the receipt of which was admitted by McGrath, in which was enclosed additional information on the building. It appears that plaintiff pursued the lease further by calling Carroll and Garrison to verify that 75,000 square feet could be made available, and neither denied this call. 2 Plaintiff also testified that on the same day he called and gave McGrath this information and that he made other follow-up telephone calls to McGrath even after he was terminated by Building Management. Finally, it is significant that plaintiff testified to visiting McGrath and Cranfill at Walter Frank’s plant and office in early August to observe the layout of the manufacturing operation and to help McGrath determine how Walter Frank’s equipment could fit into Chelco’s facility.
Among the events following July 23, it appears that the next time McGrath called Building Management, he asked for plaintiff, who by then had been terminated. This fact could reasonably have suggested to the jury that McGrath desired further negotiations and that he believed such negotiations were to be conducted through plaintiff. Such inference is reinforced by the evidence that prior thereto, Garrison did not contact McGrath after Holz informed him (Garrison) of giving McGrath a tour of the building. (Cf. O’Leary v. Crow (1978),
While the record reveals extensive conflict in the testimony, we are of the view that it is supportive of plaintiff’s position that he brought the parties together and was instrumental in the consummation of the transaction. Resolution of contradictory testimony is not a function of the reviewing court, which cannot reevaluate the evidence and set aside a jury verdict merely because it could have reached a different conclusion (Ryon v. Javior (1979),
Cheleo next contends that plaintiff’s instructions Nos. 9 and 11 improperly implied that prior authority to offer space for lease in the building, if proved, governed the determination of plaintiff’s authority with respect to the Walter Frank lease. Instruction No. 9 on plaintiff’s burden of proof (Illinois Pattern Jury Instruction, Civil, No. 21.02 (2d ed. 1971) (modified) (IPI)) in pertinent part required plaintiff to prove:
“Second, that the plaintiff had an agreement with defendant Cheleo Corporation to procure tenants for said building;
Third, that the plaintiff was the procuring cause of the lease of said building to the Walter Frank Organization, dated December 18, 1974.” (Emphasis added.)
Plaintiff’s instruction No. 11 (non-IPI) stated, in pertinent part:
“Plaintiff is not required to demonstrate any particular form of agreement with the defendant for the leasing of the building.” (Emphasis added.)
Cheleo here asserts that use of the words “said building” in No. 9 and “Building” in No. 11, rather than the phrase “available space” foreclosed the jury from considering Chelco’s position that plaintiff lacked authority to secure a tenant for the space leased to Walter Frank and that a narrower instruction should have been given which referred only to the space actually leased by Walter Frank. The effect of those instructions, according to Cheleo, assumed plaintiff had broader authority and unduly emphasized the Stratton Hats lease which plaintiff had previously obtained. We find no merit to this contention.
In general, the criterion for determining the adequacy of jury instructions is whether, taken as a whole and in series, they fairly, fully, and comprehensively apprised the jury as to applicable legal principles (Jensen v. Chicago & Western Indiana R.R. Co. (1981),
Furthermore, concerning Chelco’s reference to the Stratton Hats lease, we do not think the challenged instructions permitted the jury to conclude that since plaintiff was authorized to secure the Stratton Hats lease, he was also authorized to obtain the Walter Frank lease. Neither does the record indicate that plaintiff had authority to obtain the Stratton Hats lease but lacked authority to procure other tenants. The potential for such errors was, in our view, eliminated by the specific reference to the lease given to Walter Frank. By that reference, the jury was instructed to determine whether plaintiff was authorized to find a tenant for the space which Walter Frank leased. Moreover, contrary to Chelco’s contention, the giving of instruction No. 11 was consistent with the law of this State which provides that a broker’s authority may be implied from the conduct of the principal. (Cole v. Brundage (1976),
Cheleo further maintains that plaintiff’s instructions Nos. 12 and 12F repetitively instructed the jury as to what was not required in order to establish procuring cause and thereby afforded the jury no guidance in determining if plaintiff was the procuring cause of the instant lease. Instructions Nos. 12 and 12F (non-IPI) provided:
“In order for the plaintiff to be regarded as the procuring cause of the lease of the [building], the plaintiff must show that he was instrumental in bringing the parties together. It is not necessary for the plaintiff to have personally introduced the tenant to the defendant. It is sufficient if the lease was effected through the efforts of the plaintiff, or through information derived from him.
It is not necessary for the plaintiff to have been physically present at the closing of the lease in order for the plaintiff to be regarded as the procuring cause of the lease.”
Inasmuch as those instructions accurately stated relevant principles of law, as discussed above, and are supported by evidence in the record (see Figarelli v. Ihde (1976),
Finally, Cheleo contends that the trial court erred in permitting plaintiff to impeach his own testimony on direct examination. It is sufficient to note that we have examined the record relative to this point and find that if any error was committed, it was not prejudicial.
We next consider plaintiff’s contention in his cross-appeal that the trial court erred in denying leave to amend his complaint by adding a count (count II). In this regard, section 46(1) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 46(1)) provides in relevant part:
“At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, discontinuing as to any plaintiff or defendant, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand.”
Although a party has no absolute right to amend pleadings (Whildin v. Kovacs (1980),
Furthermore, while an amendment should not ordinarily be permitted if it sets forth matters of which the pleader had full knowledge at the time of filing the original pleading and no excuse is offered for not putting the substance of the amendment therein (Mayfair Construction Co. v. Security Insurance Co. (1977),
In the case before us, plaintiff filed his original complaint in September 1975 to recover a brokerage commission allegedly due him from Building Management and Cheleo, and the record indicates that at an evidence deposition taken in May 1976, plaintiff stated that under his oral contract with defendants he was to be paid a salary, brokerage fees, and — upon becoming president of Building Management — a monthly management commission, and it was indicated in the deposition that he became president in January 1974.
Thereafter, on May 15, 1980, plaintiff moved for leave to amend the original complaint to add a claim for recovery of the monthly management commission. No action was taken on that motion until the case was assigned to trial, at which time it was denied by the trial judge.
It is our belief that the trial court should have allowed the amendment. The proof concerning the claim for such commission could apparently have been presented without delaying the case, and it is apparent that the management commission was one of the alleged terms of employment in the oral contract, so that the evidence presented by Cheleo to refute the brokerage commission claim would have been essentially the same as that presented against the claim for the management commission. (See United Air Lines, Inc. v. Conductron Corp. (1979),
Finally, we consider plaintiff’s other contention on cross-appeal, that the trial court erred in denying him prejudgment interest, to which he argues entitlement under the provisions of section 2 of the Interest Act which allows prejudgment interest to creditors at the rate of 5 percent per year “on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance * * * and on money withheld by an unreasonable and vexatious delay of payment.” (Ill. Rev. Stat. 1979, ch. 74, par. 2.) We find this contention to be without merit.
We need not determine whether the amount of interest due is capable of ascertainment, since we think it clear from the record before us that money was not withheld by Cheleo because of an unreasonable and vexatious delay of payment. Neither an honest dispute regarding the existence of a legal obligation nor the defense of a lawsuit can be regarded as unreasonable and vexatious delays of payment. (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980),
For the reasons stated, the judgment entered on the verdict for plaintiff is affirmed; the order denying prejudgment interest to plaintiff is affirmed; the order denying plaintiff leave to amend his complaint is reversed and this cause is remanded for further proceedings in that regard.
Affirmed in part, reversed in part and remanded with instructions.
LORENZ and WILSON, JJ., concur.
Notes
Building Management was dismissed from this action by directed verdict at the close of plaintiff’s case.
Although plaintiff declined to disclose to Garrison the identity of Walter Frank as the potential tenant, that fact has no bearing on the question of procuring cause, inasmuch as the contacts between the parties were still at the preliminary negotiation stage.