{
  "id": 1576566,
  "name": "Olaf Carlson, d/b/a Maple Realtors, Plaintiff, v. Jean Collander, Defendant and Counterdefendant-Appellant, and Don Derrico, Defendant and Counterplaintiff-Appellee",
  "name_abbreviation": "Carlson v. Collander",
  "decision_date": "1970-06-10",
  "docket_number": "Gen. No. 53,425",
  "first_page": "236",
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      "cite": "115 Ill App2d 467",
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  "last_updated": "2023-07-14T22:40:02.099510+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Olaf Carlson, d/b/a Maple Realtors, Plaintiff, v. Jean Collander, Defendant and Counterdefendant-Appellant, and Don Derrico, Defendant and Counterplaintiff-Appellee."
    ],
    "opinions": [
      {
        "text": "MR. JUSTICE ENGLISH\ndelivered the opinion of the court as modified on denial of counterdefendant\u2019s petition for rehearing.\nCounterdefendant appeals from a judgment against her and in favor of counterplaintiff for damages of $5,000 arising from counterdefendant\u2019s failure and refusal to complete the sale of certain real estate pursuant to an option contract. The sole issue presented for our review is whether counterplaintiff is legally entitled to recover the entire amount awarded as damages.\nThe original complaint in this action was filed by plaintiff, Olaf Carlson, d/b/a Maple Realtors (who is not a party to this appeal) seeking a commission for having negotiated a real estate transaction between counter-plaintiff and counterdefendant. Counterdefendant (as defendant in the original action) then filed a motion to dismiss as to her, which was granted. Counterplaintiff (as the other defendant in the original action) filed an answer to plaintiff\u2019s complaint in which he denied entering into any oral agreement with plaintiff to negotiate the sale of the property and pay plaintiff a commission. He admitted entering into an option contract with counter-defendant to purchase the subject real estate and notifying counterdefendant of his intention to exercise the option.\nCounterplaintiff also filed a counterclaim against counterdefendant seeking damages in the sum of $5,000, plus interest and costs, for her failure and refusal to enter into a contract of sale of the subject property on counterplaintiff\u2019s exercise of his option. Counterdefendant\u2019s answer to the counterclaim admitted the existence of the option contract and receipt of counterplaintiff\u2019s notice exercising the option, but denied that counter-plaintiff was entitled to any damages.\nAt the close of the testimony, the court entered three judgments: (1) for plaintiff against counterplaintiff with damages in the amount of $2,500, (2) for counter-defendant against plaintiff for costs, and (3) for counter-plaintiff against counterdefendant with damages in the amount of $5,000. On appeal, counterdefendant challenges only the amount of damages awarded in counter-plaintiff\u2019s favor.\nThe parties agree that the rule concerning the measure of damages to be awarded for the instant breach of contract is properly set out in 15 ILP, Damages (1968), \u00a7 33, where it is stated at pages 379-80:\nThe damages recoverable for a breach of contract are such as may fairly and reasonably be considered as naturally arising from the breach thereof, in the light of the facts known or which should have been known, or such as may reasonably be supposed to have been within the contemplation of the parties at the time of making the contract as a probable result of a breach thereof; it need not be shown that the parties considered the consequences of a breach at the time the contract was made, but the consequences must be such as the parties may fairly be supposed to have considered, or at least would have considered had they been informed of all the facts.\nThere is also a concurrence of opinion as to the proof offered at trial of several elements of foreseeable damage. These include proof of legal fees and expenses incurred, the cost of establishing a land trust, and the value of counterplaintiff\u2019s own efforts in researching the instant venture. Depending on the per hour variable (set at between $10 and $15) used in computing the worth of counterplaintiff\u2019s time, the damages awarded for these enumerated expenses, based on eounterplaintiff\u2019s testimony, could range from $2,265 to $2,775. Counterdefendant\u2019s sole objection to this aspect of the award is that the attorney\u2019s fee, estimated at $1,125, when based upon the minimum fee schedule adopted by the Board of Governors of the Illinois State Bar Association, should be revised downward to reflect the failure of the parties to consummate the instant transaction. Even if we were to make such an adjustment, we believe that the evidence, with a fair degree of probability, nevertheless establishes $2,500 as a proper assessment of damages for these items. See Barnett v. Caldwell Furniture Co., 277 Ill 286, 289, 115 NE 389.\nThe gravamen of counterdefendant\u2019s complaint on this appeal concerns the remaining $2,500 assessed as damages, representing the broker\u2019s commission adjudged by the court to be owed plaintiff by counterplaintiff. Counterdefendant\u2019s initial argument is that since counterplaintiff did not include the broker\u2019s commission as a specific item of damages in his countercomplaint, the matter could not be considered as such by the trial court, nor can the theory be asserted upon review. Consoer, Townsend and Associates v. Addis, 37 Ill App2d 105, 185 NE2d 97. We reject this contention, based upon the substance of the counterclaim. There, it alleged that counterdefendant \u201cfailed and refused to enter into the contract\u201d and \u201cby reason thereof and of the necessary expenses incurred\u201d he should be reimbursed with damages in the amount of $5,000. This general allegation of damages serves as a sufficient basis for allowance to counterplaintif of all damages accruing to him as a result of counterdefendant\u2019s failure to abide by her contract. This includes counterplaintiff\u2019s adjudicated liability to plaintiff in the amount of $2,500 as damages arising from counterplaintiff\u2019s failure to pay plaintiff a brokerage commission. Counterplaintiff filed a notice of appeal from that judgment but did not pursue that appeal in this court.\nCounterdefendant urges for the first time in her reply brief that because plaintiff\u2019s right to a broker\u2019s commission was (by the terms of the agreement between plaintiff and counterplaintiff) dependent upon completion of the transaction, plaintiff had not earned his commission in this instance. Since counterdefendant has appealed solely from the judgment against her for damages to counterplaintiff, this contention would appear to be the raising of a collateral attack upon a judgment which has become final and binding upon this court. In any event, however, we are governed by the principle that a reviewing court will not consider an issue raised for the first time in a reply brief. Ill Rev Stats 1967, c 11A, \u00a7 341(g); Haffa v. Haffa, 115 Ill App2d 467, 476, 253 NE2d 507; Nielsen v. Duyvjonck, 94 Ill App2d 224, 230, 236 NE2d 743. The essence of this contention, however, is that of a collateral attack upon a judgment from which no appeal has been taken and which has therefore become final and binding upon this court.\nCounterdefendant further asserts that her damages cannot be affected by a contract entered into between counterplaintiff and plaintiff. This point, too, is without merit in the light of the transcript before us. Plaintiff testified that counterdefendant told him that \u201chis commission would have to come from the purchaser.\u201d Similarly, counterdefendant testified that plaintiff told her \u201che thought he had a client who would take care of his commission.\u201d Thus, counterdefendant entered into the option contract anticipating that counterplaintiff would incur an obligation to pay a broker\u2019s commission. Since the court then entered judgment in favor of plaintiff for such a commission, we conclude that the court properly found that counterdefendant\u2019s default under her contract rendered her liable to counterplaintiff for that amount as an element of damages.\nAccordingly, the judgment of the Circuit Court in favor of counterplaintiff and against counterdefendant is affirmed.\nAffirmed.\nSTAMOS, P. J. and DRUCKER, J., concur.",
        "type": "majority",
        "author": "MR. JUSTICE ENGLISH"
      }
    ],
    "attorneys": [
      "Gatenbey, Spuller, Law & Johnson, of Chicago (Fred H. Law, Jr., Philip J. R. Equi, and William F. Rickelman, of counsel), for defendant and counterdefendant-appellant.",
      "Albert Koretzky, of Chicago, for defendant and counterplaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "Olaf Carlson, d/b/a Maple Realtors, Plaintiff, v. Jean Collander, Defendant and Counterdefendant-Appellant, and Don Derrico, Defendant and Counterplaintiff-Appellee.\nGen. No. 53,425.\nFirst District, Fourth Division.\nJune 10, 1970.\nRehearing denied July 28, 1970.\nGatenbey, Spuller, Law & Johnson, of Chicago (Fred H. Law, Jr., Philip J. R. Equi, and William F. Rickelman, of counsel), for defendant and counterdefendant-appellant.\nAlbert Koretzky, of Chicago, for defendant and counterplaintiff-appellee."
  },
  "file_name": "0236-01",
  "first_page_order": 242,
  "last_page_order": 247
}