{ "id": 2508573, "name": "Western Pride Builders, Inc., Plaintiff-Appellant, v. Helen Zicha, Defendant-Appellee", "name_abbreviation": "Western Pride Builders, Inc. v. Zicha", "decision_date": "1974-10-15", "docket_number": "No. 58255", "first_page": "770", "last_page": "774", "citations": [ { "type": "official", "cite": "23 Ill. App. 3d 770" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "314 N.E.2d 361", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill.App.3d 315", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5343601 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/20/0315-01" ] }, { "cite": "142 N.E.2d 791", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "13 Ill.App. 2d 538", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5171678 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/13/0538-01" ] }, { "cite": "230 N.E. 2d 486", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "87 Ill.App.2d 180", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2547567 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/87/0180-01" ] }, { "cite": "276 N.E.2d 446", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "2 Ill.App.3d 392", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2752182 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/2/0392-01" ] }, { "cite": "123 N.E.2d 139", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "3 Ill.App.2d 495", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5127800 ], "pin_cites": [ { "page": "499" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/3/0495-01" ] }, { "cite": "55 N.E.2d 305", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "323 Ill.App. 291", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4969661, 4969951 ], "opinion_index": 0, "case_paths": [ "/ill-app/323/0291-02", "/ill-app/323/0291-01" ] }, { "cite": "115 Ill.App. 521", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2547779 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/ill-app/115/0521-01" ] }, { "cite": "43 N.E. 1073", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1938, "opinion_index": 0 }, { "cite": "161 Ill. 235", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3123110 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/ill/161/0235-01" ] }, { "cite": "60 Ill.App. 386", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5156010 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/ill-app/60/0386-01" ] }, { "cite": "37 Ill.App. 464", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 859928 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/ill-app/37/0464-01" ] }, { "cite": "351 F.Supp. 329", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3552711 ], "opinion_index": 0, "case_paths": [ "/f-supp/351/0329-01" ] }, { "cite": "58 N.E.2d 527", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "388 Ill. 580", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2502907 ], "opinion_index": 0, "case_paths": [ "/ill/388/0580-01" ] }, { "cite": "46 Ill. 75", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 } ], "analysis": { "cardinality": 513, "char_count": 9278, "ocr_confidence": 0.755, "pagerank": { "raw": 1.8718484223254723e-07, "percentile": 0.7263983344202692 }, "sha256": "106345498dbe0d4d314ebd20f0d5e645e2215d483b444949e647a45c4a22536c", "simhash": "1:80cb4ca5d847cde1", "word_count": 1538 }, "last_updated": "2023-07-14T18:19:43.775116+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Western Pride Builders, Inc., Plaintiff-Appellant, v. Helen Zicha, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE LEIGHTON\ndelivered the opinion of the court:\nWestern Pride Builders, Inc., the plaintiff, a licensed real estate broker, appeals from a judgment entered in a suit it filed against Helen Zicha. The complaint alleged that, at her request, plaintiff procured a ready, willing and able buyer who, at a price of $47,500, purchased a building owned by defendant; and that, as a result, she owed the plaintiff a real estate brokerage commission of $2,850. After a trial without a jury, the court ruled in defendant\u2019s favor, with costs. The issue in this appeal is whether the trial court erred in finding that plaintiff was not the procuring cause in the sale of the building and in concluding that plaintiff could not recover a real estate brokerage commission from defendant.\nOn June 1, 1964, defendant purchased a building situated at 5855 West 35th Street in Cicero, Illinois. Victor and Virginia Conforti were in possession of the property as leasehold tenants. A month or so later, defendant decided to sell. She tried to interest the Confortis; and for a period of more than 6 years, she discussed sale of the property with them. However, the Confortis never made an acceptable offer.\nEarly in December 1970, defendant placed the building with the plaintiff on an open listing. There was no restriction with regard to dealings with tenants of the building. Therefore, a few days later, plaintiff communicated with the Confortis; and as a res\u00fclt, they made an offer of $45,000. Defendant was advised; and thereafter, she met two officials of the firm in their brokerage offices, where she told them that she would b\u00e9 willing to accept the sum of $47,000 if from that amount she received a net of $45,000. Following this meeting, plaintiff continued negotiations with the Confortis and obtained from them a signed contract in which they agreed to buy defendant\u2019s building for $47,000. The contract was sent to defendant; and about 7 days later, when plaintiff\u2019s president called to ascertain her decision concerning it, defendant said she had sent the matter to her attorney and was waiting to see what he was going to do. Later, when plaintiff did not receive any communication from defendant, its president called her arid she referred him to the lawyer. When the lawyer was contacted, he said that defendant\u2019s building was being handled on an exclusive listing by his son, who was a real estate broker. On April 19, 1971, the Confortis, with the lawyer\u2019s son as- the broker, signed a contract by which they agreed to buy defendant\u2019s building for $47,500. The transaction was closed on June 1, 1971.\nAfter learning of this fact, plaintiff filed its complaint. Defendant answered and admitted plaintiff obtained from the Confortis an offer to purchase her building; and that on a real estate sale of $47,500, the broker\u2019s commission was $2,850. Then, after discovery proceedings Were completed, the case went to trial without a jury. The court heard evidence-from which it found that the Confortis were tenants with whom defendant had negotiated for the sale of the building before plaintiff got them to make an offer; and that after the contract was signed, plain,tiff, although claiming it was the real estate broker, did nothing to complete the sale. Therefore, the court found the plaintiff firm was not the procuring cause of the sale and concluded that it was not entitled to receive a real estate brokerage commission from defendant for the purchase of her building by the Confortis.\n\u25a0 The evidence in this record proved that early in December 1970, defendant listed her building with the plaintiff and gave it the authority to procure an acceptable, ready, willing and able purchaser. On December 12, after some discussion with defendant, plaintiff obtained a $47,000 offer from the Confortis. According to Virginia Conforti, she and her husband made the offer by a contract which they signed with intent to purchase defendant\u2019s building. When defendant testified, first as an adverse witness and later on her behalf, she did not giye positive testimony concerning the $47,QOO offer. She. answered three questions in the negative,\"saying, \u201cI don\u2019t, recall,\u201d \u201cI don\u2019t have-it\u201d and \u201cI have not seen it.\u201d In contrast, plaintiff\u2019s president testified positively, that-after receiving the .Conforti .contract, he. sent, the original ;to defendant; and-later, in conversation with her, she told him she sent it to her lawyer and was waiting his response.\nAs a rule of evidence, it is said that negative testimony does not raise an issue of fact. (See Chicago & Alton R.R. Co. v. Gretzner, 46 Ill. 75; Robertson v. New York Central R.R. Co., 388 Ill. 580, 58 N.E.2d 527.) In this case, defendant\u2019s testimony was negative. At best, it amounted to saying that she could not remember seeing or receiving the $47,000 offer. Her testimony, contradicted by a copy of the contract and by the positive testimony of the firm\u2019s president, did not refute plaintiff\u2019s claim that the $47,000 offer was sent to her; that she received it; and that she considered it and sent it to her lawyer. (See Gates Rubber Co. v. USM Corp. (S.D. Ill. 1972), 351 F.Supp. 329.) Therefore, plaintiff proved that on or about December 12, 1970, defendant placed with it her real estate in order that plaintiff could find a ready, willing and able purchaser; that plaintiff found one; and that while negotiations were in progress from its efforts, an offer from the Confortis was sent to defendant. The offer was not rejected; plaintiff\u2019s agency was not terminated; and consideration of the offer was undertaken by defendant.\nThe law governing the relation between an owner of real estate and a broker is well settled. An owner cannot, in the midst of negotiations, withdraw the agency and thereby deprive the broker of his commission. (Gleason v. McKay, 37 Ill.App. 464; Day v. Porter, 60 Ill.App. 386, affirmed, 161 Ill. 235, 43 N.E. 1073; Finkelstein v. Spurck, 115 Ill.App. 521; see 12 C.J.S. Brokers \u00a7 85a (1938).) A real estate broker who by the terms of his employment brings an able and willing purchaser to the owner cannot be deprived of his commission simply because the owner completes the transaction himself, or through another broker, even though the sale is under different terms. (Vancil v. Walter, 323 Ill.App. 291, 55 N.E.2d 305.) Of course, to establish his right to a commission, the broker must prove he procured a prospective purchaser who was ready, willing and able to buy at the price fixed. (Greenwald v. Marcus, 3 Ill.App.2d 495, 499, 123 N.E.2d 139.) But if the owner approves of or enters into a contract with the purchaser, the readiness, willingness and ability of the latter is no longer open to question and the broker\u2019s right to compensation accrues whether or not the sale is completed. (Bernard Klibanow & Company, Inc. v. Shafer, 2 Ill.App.3d 392, 276 N.E.2d 446.) On the other hand, if the owner claims the broker abandoned the negotiations, the evidence must show not only a discontinuance of his efforts by the broker, it must show abandonment by the purchaser of all intention to buy the property. Homann v. Wilson, 87 Ill.App.2d 180, 230 N.E. 2d 486 (abstract opinion); compare Mammen v. Snodgrass, 13 Ill.App. 2d 538, 142 N.E.2d 791.\nIn the case before us, there was no evidence that defendant\u2019s prior negotiations with the Confortis were the cause of their decision to purchase the building in question. It was plaintiff, in its employment as defendant\u2019s broker, who procured their offer and who procured them as able and willing purchasers of defendant\u2019s real estate. Nor was there any evidence that plaintiff abandoned its efforts as defendant\u2019s real estate broker. Certainly, as Virginia Conforti\u2019s testimony proved, the purchasers procured by the plaintiff never abandoned their intention to buy the building in question. Defendant never rejected the offer from the Confortis which plaintiff sent to her; she did not terminate plaintiff\u2019s agency. As we said recently, \u201c[a] broker\u2019s right to a commission depends on whether the sale was procured or effected through his efforts or through information derived from him, and cannot be defeated by the owner\u2019s making the sale himself or through another broker.\u201d Van C. Argiris Co. v. Caine Steel Co., 20 Ill.App.3d 315, 314 N.E.2d 361.\nTherefore, we are of opinion that the trial court - erred when it found that plaintiff was not the procuring cause in the sale of defendant\u2019s building to the Confortis and in concluding that it was not entitled to a real estate brokerage commission. Accordingly, the judgment of the trial court is reversed; and there being no dispute between the parties concerning the amount of the commission due from the sale, judgment of this court is entered in favor of plaintiff in the sum of $2,850, with costs in the trial court and in this appeal.\nReversed; and judgment entered in this court in favor of plaintiff.\nHAYES, P. J., and STAMOS, J., concur.", "type": "majority", "author": "Mr. JUSTICE LEIGHTON" } ], "attorneys": [ "Barry B. Nekritz, Dean A. Dickie, and Thomas M. Harris, all of Chicago (Aaron, Aaron, Schimberg & Hess, of counsel), for appellant.", "Frank J. Toman, of Berwyn, for appellee." ], "corrections": "", "head_matter": "Western Pride Builders, Inc., Plaintiff-Appellant, v. Helen Zicha, Defendant-Appellee.\n(No. 58255;\nFirst District (2nd Division)\nOctober 15, 1974.\nBarry B. Nekritz, Dean A. Dickie, and Thomas M. Harris, all of Chicago (Aaron, Aaron, Schimberg & Hess, of counsel), for appellant.\nFrank J. Toman, of Berwyn, for appellee." }, "file_name": "0770-01", "first_page_order": 794, "last_page_order": 798 }