202 Ill. App. 43 | Ill. App. Ct. | 1916
Lead Opinion
delivered the opinion of the court.
Defendants in error (plaintiffs below) sued plaintiff in error (defendant below) for the recovery of an alleged commission, resulting in a verdict and judgment for $375 in favor of plaintiffs. Plaintiffs’ suit is upon a contract of employment as real estate brokers.
It is contended that defendant is not liable to plaintiffs because he acted solely as agent for his wife, who had record title to the property in question, and that plaintiffs had notice of that fact, because they sold for Mrs. Kreis (prior to the sale in question) about six feet of the said property, and another piece adjoining .it, to one Tegtmeyer. “Where an agent discloses the fact of his agency, or where the other party knows at the time that he is acting as such agent, the latter will not be liable, unless he binds himself to become responsible.” St. Louis Southwestern Ry. Co. v. White Lumber Co., 169 Ill. App. 482, 483; Yuckman v. Considine, 191 Ill. App. 192.
In the instant case under all the facts and circumstances in evidence, we are of opinion that the evidence tended to show that defendant became bound as principal by the terms of the contract of employment.
Under said contract it became plaintiffs’ duty to secure for defendant a purchaser ready, willing and able to purchase said property on terms acceptable to defendant. Plaintiffs contend that they secured' such a purchaser, in the person of a certain Hock, and that defendant attempted to avoid payment of a com-, mission by selling said real estate to another, named Woodward, who in turn conveyed same to Hock. Defendant, upon the other hand, contends that plaintiffs (a) failed to produce such a purchaser and (b) were not the procuring cause of the sale, and (c) that such sale was made by defendant without knowledge that Woodward actually purchased said property for Hock with money furnished by the latter.
It is shown by the evidence that covering a period of about two years, plaintiffs, under the terms, of their employment, endeavored to induce Hock to purchase said property, and at the end of such period, Hock and defendant informed plaintiffs that they would not negotiate further in reference to same. The controlling issue of fact presented by the pleadings and evidence is the question of defendant’s good faith in abandoning said negotiations.
The court refused defendant’s motion to instruct the jury that if they believed from the evidence that the defendant acted in good faith at the time he sold the property in question to Woodward and did not know that Woodward was purchasing said property for the benefit of Joseph Hock, their verdict should be for defendant.
One of'plaintiffs’ given instructions referred to the question of Hock’s good faith, together with that of defendant’s, but the question of defendant’s good faith, without reference to that of Hock, was not submitted to the jury by any instruction. Said given instruction was not only misleading but each party had the right to have the jury instructed upon his theory of the case, if it had a basis in- the evidence upon which to rest. Chicago Union Traction Co. v. Browdy, 206 Ill. 615, 623. The refusal to give the foregoing instruction was reversible error. The judgment of the Municipal Court is therefore reversed and the cause remanded.
Reversed and remcmded.
Rehearing
Additional Opinion Filed on Petition por Eehearing.
delivered the opinion of the court.
It is urged on the petition for rehearing that it was immaterial to the issues in this case whether defendant was acting in good faith or not. The real issue of fact was, whether or not plaintiffs were the procuring cause of the sale. It is true, the property was ultimately sold to plaintiffs’ customer (Hock), but not by defendant, for he sold to Woodward at a price $500 below that submitted to plaintiffs. That fact would make no difference if defendant knew that he was dealing with Hock or with Woodward as his representative. But where, as in the present case, there is evidence tending to show abandonment of negotiations with the broker’s customer, and entry upon negotiations with another party apparently in his own interest but in fact as the' secret representative of plaintiffs’ customer, of which defendant was ignorant, and that defendant, on due inquiry, was led to believe that he was dealing with an entirely new party and was not to pay commissions and was thereby induced to sell at such lower price, we think the element of good faith is material. It would not only seem unjust if he acted in good faith in the transaction that he should be mulcted for damages in the form of commissions because of bad faith and deceit practiced upon him by plaintiffs’ customer, but to present the question, whether, so far as the operating influences on defendant are concerned, plaintiffs under such circumstances could be said to be the procuring cause <of the sale. If he was acting in bad faith he would be chargeable with commissions on plaintiffs’ theory, but if acting in good faith, the controlling influences of the sale were not those set in motion by plaintiffs.
Rehearing denied.
