{ "id": 5135305, "name": "James Shelton, Appellee, v. Jacob Sulek and Sophie Sulek, Appellants", "name_abbreviation": "Shelton v. Sulek", "decision_date": "1955-02-23", "docket_number": "Gen. No. 46,525", "first_page": "186", "last_page": "190", "citations": [ { "type": "official", "cite": "5 Ill. App. 2d 186" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "337 Ill. 584", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5233763 ], "opinion_index": 0, "case_paths": [ "/ill/337/0584-01" ] }, { "cite": "136 Ill. 298", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2991938 ], "opinion_index": 0, "case_paths": [ "/ill/136/0298-01" ] }, { "cite": "118 Wash. 575", "category": "reporters:state", "reporter": "Wash.", "case_ids": [ 749769 ], "opinion_index": 0, "case_paths": [ "/wash/118/0575-01" ] }, { "cite": "75 Wash. 291", "category": "reporters:state", "reporter": "Wash.", "case_ids": [ 622693 ], "opinion_index": 0, "case_paths": [ "/wash/75/0291-01" ] }, { "cite": "323 Ill. App. 438", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4967520, 4967310 ], "opinion_index": 0, "case_paths": [ "/ill-app/323/0438-01", "/ill-app/323/0438-02" ] } ], "analysis": { "cardinality": 335, "char_count": 5441, "ocr_confidence": 0.572, "pagerank": { "raw": 9.172768950710949e-08, "percentile": 0.5089478189655072 }, "sha256": "63a350191bfee8cd36c15d9ac5aeef5b97af3a1d503de999b5e3f0290ecd7824", "simhash": "1:beb3e5997b89def1", "word_count": 914 }, "last_updated": "2023-07-14T15:38:20.535492+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "James Shelton, Appellee, v. Jacob Sulek and Sophie Sulek, Appellants." ], "opinions": [ { "text": "MR. PRESIDING JUSTICE KILEY\ndelivered the opinion of the court.\nThis is an appeal from plaintiff\u2019s judgment for $1,132.50, confirming a confession judgment upon a promissory note which plaintiff, real estate broker, held as escrowee pending consummation of a sale of real estate.\nMarch 3, 1953, plaintiff confessed judgment upon the note for $1,000 made by defendants payable to plaintiff\u2019s order. April 1st garnishment proceedings were begun. April 21st, on defendants\u2019 petition, the judgment was opened for a hearing upon the merits. The judgment appealed from was entered April 28th.\nFebruary 15, 1953, defendants went to plaintiff\u2019s office in response to an ad for sale of residential property. Defendants inspected the property but objected to the price asked and made a written offer of purchase for $17,000. At the same time they signed the note for $1,000 as earnest money under a provision of their offer. Defendants\u2019 offer was accepted the same night by the owners and the result was a written agreement. The following day defendants served on plaintiff and the owner a written notice of withdrawal of \u201can offer\u201d and asked a return of the note given as \u201cearnest money.\u201d\nA decisive question is whether plaintiff had a suable interest in the note.\nThe contract provided that defendants had paid $1,000 earnest money to be \u201capplied on said purchase when consummated\u201d; that the earnest money would be held by plaintiff in escrow for the mutual benefit of the parties; and that unless defendants should be entitled to a refund the earnest money to be applied \u201cfirst to the payment of any expenses incurred for the seller by said broker, and second to the payment of said commission, the balance if any to be paid to the seller.\u201d The contract also provided the seller should pay the commission. The note was the usual judgment note payable to plaintiff and made no reference to the contract.\nDefendants rely principally on Van Doren Realty Corp. v. Svehla, 323 Ill. App. 438, to sustain its contention that plaintiff had no suable interest. This court in that case distinguished plaintiff\u2019s cases on the ground that they involved agents in possession of money belonging to principals, the agents parting with the money under circumstances rendering them liable to the principals. This court did pass over a contention that the broker had a third party beneficial interest by saying that his interest in the contract was \u201cmerely incidental.\u201d The court decided that even though the Van Doren Realty Corp. was deprived of a commission it would have been entitled to had the sale been consummated, any right of action that may have accrued under the \u201ccontract\u201d because of the wrongful stopping of payment of the escrow check belonged to the seller. The court held Van Doren had no suable interest in the \u201csubject matter.\u201d\nPlaintiff argues that the Van Doren suit was upon the contract; agrees that the decision was right on the facts; and states that were plaintiff here suing on the contract the Van Doren case would apply, but says the suit here is upon the note payable to escrowee and he had the right to reduce the note to cash and pay out the proceeds according to the contract provision.\nThough plaintiff here makes different contentions and relies on different cases than plaintiff in the Van Doren case, we see no substantial distinction between the cases. There a negotiable instrument of a different species was involved. The suit was not for damages for breach of contract but to recover the earnest money. The suit here, as there, is \u201cpredicated\u201d upon the contract, because the contract, introduced in evidence, is what gives the note meaning, and plaintiff\u2019s claim is therefore rooted in the contract.\nWe think plaintiff has no suable interest in the note. The evidence shows that the note was given as earnest money to be redeemed in cash the following day. That plaintiff is named as payee is \u201cincidental.\u201d The judgment before us is not the confession judgment on the bare note but a judgment based upon the contract provision according to which the trial court found plaintiff was entitled to the amount of the judgment which had previously been confessed.\nThe note was negotiable and its endorsement by plaintiff as escrowee to the seller was a simple procedure. There was no requirement that plaintiff as escrowee reduce the note to cash so as to comply with the terms of the contract and he had no right to do so.\nIn Harris v. Johnson, 75 Wash. 291, the plaintiff was not escrowee and had rights in the property subject of the note transaction. In West & Wheeler v. Longtin, 118 Wash. 575, the earnest money check was to be \u201cforfeited to West and Wheeler to the extent of their agreed commission and the remainder, if any, to the owner.\u201d West and Wheeler, however, were not escrowees but agents of the seller and sold the property receiving the check as earnest money. These cases are obviously different. Neither Mead v. Altgeld, 136 Ill. 298, nor Hilyard v. Krisolofsky, 337 Ill. 584, is helpful.\nWe .need consider no other point. For the reasons given the judgment is reversed.\nJudgment reversed.\nLEWS and FEINBERG, JJ., concur.", "type": "majority", "author": "MR. PRESIDING JUSTICE KILEY" } ], "attorneys": [ "Edward Paluck, of Chicago, for appellants.", "T. J. Cusack, and William Gillespie, both of Chicago, for appellee." ], "corrections": "", "head_matter": "James Shelton, Appellee, v. Jacob Sulek and Sophie Sulek, Appellants.\nGen. No. 46,525.\nFirst District, Third Division.\nFebruary 23, 1955.\nReleased for publication April 6, 1955.\nEdward Paluck, of Chicago, for appellants.\nT. J. Cusack, and William Gillespie, both of Chicago, for appellee." }, "file_name": "0186-01", "first_page_order": 202, "last_page_order": 206 }