{
  "id": 3273128,
  "name": "GERALD M. GALLINA, d/b/a Gallery of Homes, Plaintiff-Appellant, v. ERMEL DOLLENS, Defendant-Appellee",
  "name_abbreviation": "Gallina v. Dollens",
  "decision_date": "1979-08-08",
  "docket_number": "No. 78-484",
  "first_page": "174",
  "last_page": "177",
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      "cite": "75 Ill. App. 3d 174"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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      "reporter": "N.E.2d",
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      "reporter": "N.E.2d",
      "year": 1973,
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      "cite": "125 Ill. App. 2d 144",
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      "opinion_index": 0,
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      "cite": "295 N.E.2d 28",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1978,
      "opinion_index": 0
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    {
      "cite": "10 Ill. App. 3d 896",
      "category": "reporters:state",
      "reporter": "Ill. App. 3d",
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        5399014
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      "year": 1978,
      "opinion_index": 0,
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        "/ill-app-3d/10/0896-01"
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  "last_updated": "2023-07-14T14:33:33.109776+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "GERALD M. GALLINA, d/b/a Gallery of Homes, Plaintiff-Appellant, v. ERMEL DOLLENS, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. PRESIDING JUSTICE GEORGE J. MORAN\ndelivered the opinion of the court:\nThis is an appeal from a judgment of the circuit court of Jefferson County entered in favor of the defendant after the trial court had granted defendant\u2019s motion to dismiss plaintiff\u2019s two-count complaint and plaintiff had elected to stand on that complaint.\nBoth parties agree that the only issue for review is whether the complaint stated a cause of action.\nBoth parties also agree that a broker may be hired by any one of three methods: (a) implication, (b) oral or verbal contract, or (c) written contract usually in the form of a listing agreement.\nCount I of plaintiff\u2019s complaint alleged that he was a licensed real estate broker; that defendant owned property in Mount Vernon, Illinois; that defendant entered into an oral listing contract with plaintiff for the sale of defendant\u2019s property at an agreed price, and that plaintiff produced a buyer ready, willing and able to buy at a price agreed upon. The complaint also alleged:\n\u201cThat on or about January 21, 1977, defendant agreed to the terms contained in a written offer, signed by Edward Jones, and indicated her agreement to those terms by initialing the price term of the agreement; said Agreement 000 attached as Exhibit \u201cC\u201d # # \u201d\nExhibit \u201cC\u201d is a standard form agreement to purchase property prepared for the exclusive use of the Gallery of Homes. All entries are typewritten. The property listed thereon is \u201cJansen\u2019s Cleaning and Laundry.\u201d The purchase price indicated is *100,000, which appears in both written and numerical form. The figure \u201c*100,000\u201d has a line drawn through it and the figure \u201c*155,000\u201d is handwritten next to it with the initials \u201cE.D.\u201d alongside. There are several typewritten notations on the form, in addition to the standard printed clauses. A notation at the top reads, \u201cThe contract will be binding as to terms on buyer and seller but seller will have attorney prepare formal contract and contract for deed (if necessary).\u201d Notations near the mortgage clause provision of the form read: \u201cPurchaser will agree to any reasonable terms of payment from payment in full to a contract for deed with down payment as directed by seller\u201d; \u201cPurchaser would prefer to pay in full but will work terms out with seller\u201d; and \u201cPurchaser reserves right to review Jansen/Dollens contract if it is to remain in effect after his purchase.\u201d The form has special signature blocks for all concerned parties and is signed in such spaces by the prospective purchaser, Edward R. Jones, and by the broker, Gerald Gallina. The space entitled \u201cAcceptance\u201d and acknowledging the broker\u2019s activities in procuring the offer and agreeing to pay him a 6% commission is blank. No signature of the plaintiff appears anywhere on the form.\nThe general rule is that, absent agreement to the contrary, a broker is entitled to a commission upon procurement of a purchaser, ready, willing and able to purchase on the terms specified by the seller. Haas v. Cohen (1973), 10 Ill. App. 3d 896, 295 N.E.2d 28; John F. Fleming, Inc. v. Beutel (7th Cir. 1978), 395 F.2d 21; see Real Estate Litigation \u00a76.23 (Ill. Inst. Cont. Leg. Ed. 1978), for a further elaboration of authorities.\nDoes the notation on Exhibit \u201cC\u201d to the effect that Edward Jones reserved the right to review the Jansen/Dollens contract if it was to remain in effect after the purchase negate plaintiff\u2019s contention that plaintiff furnished a buyer, ready, willing and able to buy? What does this language mean? Evidently there was some kind of a contract between Dollens, the owner of the real estate, and Jansen, the operator of the cleaning establishment. We can only speculate as to the exact nature of that contract. In any event, the purchaser had the right to approve or disapprove any existing contract between the seller and Jansen before he would be bound by the listing contract. This notation reflects a condition on the buyer\u2019s offer to purchase and therefore indicates that he was not a ready, willing and able buyer on any terms which the seller might propose.\nIn case of a conflict between written exhibits and the allegations of a complaint, the exhibits control over general allegations. Preferred Risk Mutual Insurance Co. v. Hites (1970), 125 Ill. App. 2d 144, 259 N.E.2d 815; Sharkey v. Snow (1973), 13 Ill. App. 3d 448, 300 N.E.2d 279.\nFor the foregoing reasons we hold that the trial court did not err in granting defendant\u2019s motion to dismiss count I of the complaint.\nCount II of the amended complaint purports to establish liability to pay the reasonable value of the plaintiff\u2019s services on behalf of the defendant due to an implied contract between the parties. These allegations are set forth as follows:\n\u201c4. That during the period from on or about August 1,1976, until on or about February 8, 1977, a listing agreement was created by implication from the conduct and actions of the plaintiff with the consent and knowledge of the defendant upon the following terms:\nA. A total purchase price of aforesaid property of *155,000.00.\nB. *35,000.00 down and *120,000.00 financed at 8% for seven years with semi-annual payments of *11,222.04 principal and interest.\nC. Except the first payment which was to be prorated from closing to May 15, 1977.\nD. Closing would be on or before February 1, 1977.\nE. The Contract for Deed would specify division consisting of *50,000.00 of real property and *105,000.00 of personal property.\u201d\nThe remaining allegations reiterate those in count I of the complaint, and specifically incorporate Exhibit \u201cC\u201d as substantiation thereof. Count II therefore suffers from the same infirmity contained in count I. Then, too, appellant has made no intelligible argument in his brief to sustain count II of this complaint and has cited no authority in support therefor. In our opinion count II does not state a cause of action and the trial court also properly granted defendant\u2019s motion to dismiss that count.\nWe are mindful of the rule that the purpose of a complaint is to inform the defendant of a valid claim under a general class of cases and that an order of dismissal of a cause of action on the pleadings should be entered only if no set of facts can be proved which will entitle the pleader to relief. Therefore our review in this case is limited to a consideration of whether the plaintiff could prove a submissible case under the pleadings.\nWe have applied the foregoing test and hold that no set of facts can be proved in this case which would entitle the plaintiff to relief because of the language previously referred to contained in Exhibit \u201cC\u201d.\nFor the foregoing reasons the judgment of the circuit court of Jefferson County is affirmed.\nJudgment affirmed.\nKUNCE and KASSERMAN, JJ., concur.",
        "type": "majority",
        "author": "Mr. PRESIDING JUSTICE GEORGE J. MORAN"
      }
    ],
    "attorneys": [
      "David Vaught, of Walker, Gende, Hatcher, Doyle and Giamanco, of Fairview Heights, for appellant.",
      "Demetri Hassakis, of Hassakis and Hassakis, of Mt. Vernon, for appellee."
    ],
    "corrections": "",
    "head_matter": "GERALD M. GALLINA, d/b/a Gallery of Homes, Plaintiff-Appellant, v. ERMEL DOLLENS, Defendant-Appellee.\nFifth District\nNo. 78-484\nOpinion filed August 8, 1979.\nDavid Vaught, of Walker, Gende, Hatcher, Doyle and Giamanco, of Fairview Heights, for appellant.\nDemetri Hassakis, of Hassakis and Hassakis, of Mt. Vernon, for appellee."
  },
  "file_name": "0174-01",
  "first_page_order": 196,
  "last_page_order": 199
}