{ "id": 3483019, "name": "JAY EMERICH, Plaintiff and Counterdefendant-Appellee, v. BERNARD LEVITON, Defendant and Counterplaintiff and Counterdefendant-Appellant-(Dot Chere E. McAvoy, Defendant and Counterplaintiff and Counterdefendant-Appellee)", "name_abbreviation": "Emerich v. Leviton", "decision_date": "1983-09-06", "docket_number": "No. 82-2272", "first_page": "832", "last_page": "836", "citations": [ { "type": "official", "cite": "117 Ill. App. 3d 832" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "342 N.E.2d 758", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill. App. 3d 845", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5305933 ], "pin_cites": [ { "page": "853" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0845-01" ] }, { "cite": "73 N.E.2d 171", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "331 Ill. App. 374", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5053595 ], "pin_cites": [ { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/ill-app/331/0374-01" ] }, { "cite": "245 N.E.2d 529", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "105 Ill. App. 2d 466", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1598862 ], "pin_cites": [ { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/105/0466-01" ] }, { "cite": "357 N.E.2d 656", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 813", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2727566 ], "pin_cites": [ { "page": "816-17" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0813-01" ] }, { "cite": "295 N.E.2d 28", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1976, "opinion_index": 0 }, { "cite": "10 Ill. App. 3d 896", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5399014 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "900" }, { "page": "901" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/10/0896-01" ] }, { "cite": "333 N.E.2d 592", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "31 Ill. App. 3d 236", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2710171 ], "year": 1973, "pin_cites": [ { "page": "239-40" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0236-01" ] }, { "cite": "329 N.E.2d 370", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill. App. 3d 1008", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5412592 ], "weight": 2, "pin_cites": [ { "page": "1011" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/28/1008-01" ] }, { "cite": "373 N.E.2d 777", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "57 Ill. App. 3d 947", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3417854 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0947-01" ] }, { "cite": "424 N.E.2d 56", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 6", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498722 ], "pin_cites": [ { "page": "9-10" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0006-01" ] }, { "cite": "414 N.E.2d 89", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "90 Ill. App. 3d 1113", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3159323 ], "year": 1981, "pin_cites": [ { "page": "1115" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/90/1113-01" ] }, { "cite": "292 N.E.2d 177", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "9 Ill. App. 3d 361", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2853833 ], "year": 1980, "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/0361-01" ] }, { "cite": "427 N.E.2d 1312", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 283", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3082610 ], "year": 1972, "pin_cites": [ { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0283-01" ] } ], "analysis": { "cardinality": 517, "char_count": 9152, "ocr_confidence": 0.76, "pagerank": { "raw": 1.4282191304833012e-07, "percentile": 0.6503836710171134 }, "sha256": "77b30b7a39e8676bba00fe7962c5cb3a1dd042c32b1170c309860e93d195abb4", "simhash": "1:baf91c995e76bf8b", "word_count": 1481 }, "last_updated": "2023-07-14T15:08:51.886955+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JAY EMERICH, Plaintiff and Counterdefendant-Appellee, v. BERNARD LEVITON, Defendant and Counterplaintiff and Counterdefendant-Appellant\u2014(Dot Chere E. McAvoy, Defendant and Counterplaintiff and Counterdefendant-Appellee)." ], "opinions": [ { "text": "JUSTICE PERLIN\ndelivered the opinion of the court:\nPlaintiff, Jay Emerich, brought an action against defendants, Bernard Levit\u00f3n and Dot Chere E. McAvoy, to rescind a real estate contract he had entered into with Levit\u00f3n and to recover the earnest money he had paid to McAvoy, a real estate broker who served as an escrowee. McAvoy filed a counterclaim against Levit\u00f3n for a broker\u2019s commission. Emerich obtained a default judgment against Levit\u00f3n and McAvoy was ordered to return Emerich\u2019s earnest money. No action was taken on McAvoy\u2019s counterclaim. The default judgment and the orders based on it were subsequently vacated because Levit\u00f3n had not been served. Levit\u00f3n thereafter answered Emerich\u2019s complaint and McAvoy\u2019s counterclaim. Levit\u00f3n also filed a counterclaim against Emerich and McAvoy for the earnest money.\nFollowing a bench trial, the circuit court found that Levit\u00f3n had improperly executed the contract to sell the property. The court ordered the contract rescinded and allowed Emerich to retain the earnest money McAvoy had returned to him under the orders previously issued in this matter. The court entered judgment for Emerich and McAvoy on Leviton\u2019s counterclaims. The court also entered judgment for McAvoy on her counterclaim against Levit\u00f3n for a broker\u2019s commission and awarded her prejudgment interest. Finally, taking note of an agreement Emerich and Levit\u00f3n had reached while this litigation was pending to share any commission McAvoy was ultimately awarded, the court ordered Emerich to indemnify Levit\u00f3n for one-half of McAvoy\u2019s commission.\nOn appeal, Levit\u00f3n contends that the trial court erred in rescinding the contract; in entering judgment for McAvoy on Leviton\u2019s counterclaim for the earnest money; in upholding McAvoy\u2019s counterclaim against him for her commission; and in awarding her prejudgment interest. For the reasons hereinafter stated, we affirm.\nThis cause was tried on the following stipulation of facts:\nEmerich, as purchaser, and Levit\u00f3n, as seller, executed a real estate sales contract on January 4, 1978. McAvoy served as the real estate broker in the transaction. Throughout the negotiations for the sale of the property, up to and including the date on which the contract was signed, title to the subject property was held in a land trust at the Exchange National Bank under Trust No. 32779, dated August 3, 1977. Levit\u00f3n was one of the two beneficiaries of the trust and held an undivided 50% interest. The other beneficiary was Nicholas A. Karris.\nUnder the terms of the trust, the trustee was required to \u201cmake deeds for, or otherwise deal with the title to said real estate\u201d only on the written direction of Levit\u00f3n and Karris. The trust agreement also provided that \u201c[t]he beneficiary or beneficiaries hereunder, in his, her or their own right shall have *** control of the selling [of the property] ***.\u201d\nBefore the contract for the sale of the property was executed on January 4, 1978, neither Emerich nor McAvoy knew that the property was owned in trust or that Levit\u00f3n was a beneficiary of that trust. The contract did not indicate that title to the property was held in a land trust or that Levit\u00f3n was a beneficiary thereof.\nParagraph 7 of the contract obligated Levit\u00f3n to pay McAvoy a broker\u2019s commission of $10,000 at closing, which was to take place on February 10, 1978. Paragraph 5 of the Conditions and Stipulations of the contract provided in part that \u201c[i]f this contract is terminated without Purchaser\u2019s fault, the earnest money shall be returned to the Purchaser ***.\u201d\nEmerich paid $24,500 in earnest money to McAvoy who served as an escrowee. Three days before closing, on February 7, 1978, Emerich\u2019s attorney sent a letter to Leviton\u2019s attorney, Nicholas A. Karris (Leviton\u2019s cobeneficiary), stating that Emerich was repudiating the contract.\nWe first consider Leviton\u2019s contention that the trial court erred in rescinding the contract to sell the property.\nA beneficiary of a conventional land trust, when acting in his capacity as beneficiary, may enter into a valid contract to convey title to the trust property, if the trust agreement vests in him the sole right to direct the trustee to convey title. (See First National Bank v. Oldenburg (1981), 101 Ill. App. 3d 283, 287, 427 N.E.2d 1312, and the cases cited therein.) Where, as here, two or more beneficiaries share that right, a contract to sell the trust property is not enforceable unless all such beneficiaries consent to the sale. Celeste Italian Foods, Inc. v. Choyce (1972), 9 Ill. App. 3d 361, 363, 292 N.E.2d 177; Page v. Fosco (1980), 90 Ill. App. 3d 1113, 1115, 414 N.E.2d 89; Kurek v. State Oil Co. (1981), 98 Ill. App. 3d 6, 9-10, 424 N.E.2d 56.\nThere is no evidence in the parties\u2019 stipulation of facts that Nicholas A. Karris, the other beneficiary of the trust in the instant case, agreed to sell the trust property or granted Levit\u00f3n authority to execute the contract in question. (See, e.g., Penner v. Frisch (1978), 57 Ill. App. 3d 947, 373 N.E.2d 777.) We therefore conclude that the contract was not enforceable against the purchaser, Emerich. Consequently, Emerich was entitled to repudiate the contract and to retain the earnest money payments that the broker, McAvoy, had paid to him under the court orders previously entered in this cause. In light of this determination, we need not address Leviton\u2019s second contention that the court erred in denying his counterclaim against McAvoy for the earnest money.\nWe next consider whether the trial court properly entered judgment in favor of McAvoy on her counterclaim against Leviton for a broker\u2019s commission of $10,000. In Ellis Realty v. Chapelski (1975), 28 Ill. App. 3d 1008, 329 N.E.2d 370, the court stated:\n\u201cA seller engages a real estate broker to find a purchaser, and that is the extent of the broker\u2019s undertaking. [Citation.] A real estate broker earns his commission when he produces a purchaser who is ready, -willing and able to meet his principal\u2019s terms. [Citations.] The broker can perform the services requested of him without affecting title to or possession of the property being offered for sale. Consequently, liability for payment of the commission does not depend on whether the principal has authority to enter into a binding contract to sell or to convey.\u201d (28 Ill. App. 3d 1008, 1011.)\nThus, in cases involving land trusts, it has been held that the mere fact that the person employing a broker owned only a part interest in the trust does not relieve him from liability to the broker for commissions whether or not he had authority to contract for his cobeneficial owner(s). (Erbach & Haunroth Realtors v. Burnett (1975), 31 Ill. App. 3d 236, 239-40, 333 N.E.2d 592; Haas v. Cohen (1973), 10 Ill. App. 3d 896, 900, 295 N.E.2d 28.) McAvoy was entitled to her commission regardless of the enforceability of the sales contract between Leviton and Emerich. See Wolfenberger v. Madison (1976), 43 Ill. App. 3d 813, 816-17, 357 N.E.2d 656.\nLevit\u00f3n, however, contends that McAvoy should not have received the $10,000 commission specified in the sales contract because the contract provided that the commission would be paid at closing. We disagree. Such language has been construed to fix the time of payment and not to make payment contingent upon closing. (Webster v. Hochberg (1969), 105 Ill. App. 2d 466, 477, 245 N.E.2d 529.) Moreover, even if we assumed that closing was a condition precedent to McAvoy receiving her commission, satisfaction of that condition was excused in this instance by Leviton\u2019s own conduct which prevented the sale from being consummated (i.e., his failure to secure the consent of the cobeneficial owner). (Haas v. Cohen (1973), 10 Ill. App. 3d 896, 901, 295 N.E.2d 28.) \u201c[T]he seller cannot take advantage of a condition precedent the performance of which he has rendered impossible.\u201d Goldstein v. Rosenberg (1947), 331 Ill. App. 374, 375, 73 N.E.2d 171.\nFinally, Levit\u00f3n contends that McAvoy should not have been awarded statutory prejudgment interest on her commission because he had an oral employment contract with her and the statute requires an \u201cinstrument in writing.\u201d (Ill. Rev. Stat. 1981, ch. 17, par. 6402.) Examination of the real estate contract, however, reveals that Levit\u00f3n, Emerich and McAvoy all initialed paragraph 7 in which Leviton agreed to pay a broker\u2019s commission of $10,000 to McAvoy at closing. In our judgment, this satisfied the requirement of an \u201cinstrument in writing.\u201d See Hamilton v. American Gage & Machine Corp. (1976), 35 Ill. App. 3d 845, 853, 342 N.E.2d 758.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nSTAMOS and HARTMAN, JJ., concur.", "type": "majority", "author": "JUSTICE PERLIN" } ], "attorneys": [ "Paula M. Uscian, of Collins & Amos, of Chicago, for appellant.", "Friedman & Koven, of Chicago (Lawrence M. Templer, of counsel), for appellee Dot Chere E. McAvoy." ], "corrections": "", "head_matter": "JAY EMERICH, Plaintiff and Counterdefendant-Appellee, v. BERNARD LEVITON, Defendant and Counterplaintiff and Counterdefendant-Appellant\u2014(Dot Chere E. McAvoy, Defendant and Counterplaintiff and Counterdefendant-Appellee).\nFirst District (2nd Division)\nNo. 82 \u2014 2272\nOpinion filed September 6, 1983.\nPaula M. Uscian, of Collins & Amos, of Chicago, for appellant.\nFriedman & Koven, of Chicago (Lawrence M. Templer, of counsel), for appellee Dot Chere E. McAvoy." }, "file_name": "0832-01", "first_page_order": 854, "last_page_order": 858 }