{ "id": 2647161, "name": "Nicola Cardella et al., Defendants in Error, v. Tony Perille, Plaintiff in Error", "name_abbreviation": "Cardella v. Perille", "decision_date": "1909-04-12", "docket_number": "Gen. No. 14,431", "first_page": "76", "last_page": "80", "citations": [ { "type": "official", "cite": "148 Ill. App. 76" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "76 Ill. 71", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5315093 ], "opinion_index": 0, "case_paths": [ "/ill/76/0071-01" ] }, { "cite": "53 S. W. Rep. 258", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 } ], "analysis": { "cardinality": 446, "char_count": 8015, "ocr_confidence": 0.495, "pagerank": { "raw": 4.5828155114230504e-08, "percentile": 0.28714492620998366 }, "sha256": "9788b8a219af14fc1b8c7dc429b9a16e51f051739efb66089747f5d91f607dc9", "simhash": "1:9ee3a90c8864efae", "word_count": 1406 }, "last_updated": "2023-07-14T18:19:20.179595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Nicola Cardella et al., Defendants in Error, v. Tony Perille, Plaintiff in Error." ], "opinions": [ { "text": "Mr. Justice Bbowet\ndelivered the opinion of the court.\nWe think that this judgment must be reversed. The cause turns on a question of law, for the evidence is uncontradicted. It is briefly this:\nCardella and Montemurro, the plaintiffs, wanted to buy a particular piece of property on West Erie street, and they came to Perille, who was a real estate dealer, agent and broker, who lived and had an office on that street near by the place they wanted to buy, and asked him what he wanted for that place. There is no explanation given why Cardella and Montemurro should have supposed Perille had the property for sale or could fix the price, and as the only evidence offered by the plaintiffs was Perille\u2019s own and he spoke English imperfectly, it might be argued that there was some mistake or misapprehension in this statement.\nBut the burden of proving the claim of the plaintiffs rests on them, and this is .the testimony that they produce and the only .testimony that they produce on an essential and fundamental point in their case. For we consider that the vital question is: Was the defendant the agent of the plaintiffs in the transaction in this case?\nWhat was said at the beginning of the negotiation is very important in determining the answer to this question, and we must take the case as the plaintiffs have made it, and cannot guess or suspect that not what Perille testified to, hut something else, was the actual conversation, and on this guess or suspicion found a case for him.\nBeginning, then, with this inquiry in effect of the plaintiffs from the defendant,\u2014\u201cWhat will you take for 629 West Erie Street?\u201d\u2014it is plain that Perille was not the agent of plaintiffs unless the negotiations changed their complexion afterwards. Perille replied to the question, \u201cI will let you know in a day or two.\u201d Then Perille went to the owner of 629 West Erie Street, Mr. Foster (how he knew that Foster owned it does not appear), and interviewed him.\nAs to what afterward occurred, there is the concurrent testimony of Perille and Foster.\nPerille wanted to know Foster\u2019s lowest price and Foster said, in effect, \u201c$2,000 net to me.\u201d That was equivalent to saying, \u201cIf you sell it you must add your commission to the $2,000,\u201d and indeed, in answer to Perille\u2019s statement that he. couldn\u2019t work for nothing, those are not far from the words which Foster used. Perille went home. The two plaintiffs came to see him again and he said to them. \u201cI want $2,300 for the place.\u201d Here again it would be difficult to trace the least evidence of Perille\u2019s agency for the plaintiffs. Then occurred the first words, according to the testimony, which look in \u2022 any aspect like referring to an agency of Perille for the plaintiffs. His words in answer .to the question,-\u2014-What did he (one of the plaintiffs) say? are, \u201cWell, he says, you try to get a little lower, and I go to Mr. Foster again and this, I ask him\u2014My! he says,\u2014you come again?\u201d\nBut still, on direct examination Perille said, \u201cI asked them twenty-three hundred dollars, and this Nic Cardella ashed me to try to come doion a little bit. Then I go to George Foster and he ask me what is the price and he ask me everything.\u201d The two statements taken together and in connection with the preceding conversation, would seem to indicate that the plaintiffs were begging Perille for a lower price\u2014 not employing -him to secure one. Then Perille took Cardella to Foster. Foster wrote on a card at that time or before, it is hard from the testimony to say which, \u201cWill take two thousand dollars ($2,000) cash for 629 West Erie Street. George Foster,\u201d\u2014by which, however, he says he meant that $2,000 net must come to him. He gave this card to Perille. Afterward, at Perille\u2019s request, he modified these terms and amount and wrote on the reverse of the card, \u201cWill take twelve hundred dollars cash, one thousand dollars first mortgage.\u201d Foster says he changed the card at Perille\u2019s request and that the purpose may have been to cover the commission.\nThere is further testimony of Perille that when Cardella interviewed Foster, through Perille\u2019s mediation, Foster told Cardella that the price was $2,200, and that Cardella said he and his partner had but about $700 or $800 in cash, and Foster told him to try to make the cash $1,200 and the mortgage but a thousand. As the result of the whole matter, the two plaintiffs paid Perille $200 as a deposit on the sale, for which he gave them a receipt and Mr. Foster executed a deed to them afterward, in which the consideration was named as $2,000, and for which he received from the plaintiffs one thousand dollars in cash (paid by them in addition to the $200 they had paid Perille) and a trust1 deed mortgage on the property for one thousand dollars. Foster was satisfied, but the plaintiffs became dissatisfied with what had been done by Perille and brought suit against him for the $200 as money \u201cwrongfully taken from them by misrepresentation with reference to a real estate transaction.\u201d\nThe court below said: \u201cIn this matter I hold that Perille, the defendant, was the agent for the\" plaintiffs in the transaction. Therefore it necessarily follows that the plaintiffs are entitled to recover this $200 which the defendant received from them.\u201d\nThe conclusion follows the holding properly enough, but we cannot agree with the trial judge that the evidence shows that the defendant was the plaintiffs\u2019 agent, and consequently we think it necessarily follows that plaintiffs are Hot entitled to recover the $200, but that it must be considered as a portion of the purchase money, which the owner allowed Perille, as Ms agent, to retain, as compensation for making the sale.\nWe do not think the cases cited by the plaintiffs are in point, because they relate to the rights of a principal against an agent and the correlative duties. Those duties and rights are not involved here. .\nThe defendants in error cite Kice v. Porter, 53 S. W. Rep. 258 (not officially reported), to the position that even if Perille was not the agent of the plaintiffs, yet if he told a falsehood about what Foster would take, he is liable.\nThere is obiter dictum in Kice v. Porter (in which a judgment much like the present was reversed), to the effect that in certain contingencies (assuming falsehood on the part of the real estate dealer) the difference between the amount actually received by him and a reasonable and customary commission might be recovered by the vendee, even when the dealer was not vendee\u2019s agent; but the proposition is a very doubtful one at best. We think that the language of Tuck v. Downing, 76 Ill. 71, is the more applicable.\nThe falsehood, if the evidence can be said to establish one (and there is an answer of Perille, in which he says, \u201cI told them (the plaintiffs) the man that has got the place, I told them the best he do for you is twenty-two hundred dollars\u201d), \u201cwas not a fraud in legal contemplation, there being no relation of trust . or confidence between these parties creating a duty resting on appellant to state the truth. It might be morally wrong, but the law cannot lay hold of it.\u201d\nWe are forced to the conclusion that the judgment of the Municipal Court should be reversed and, as the case was tried by the court below without a jury, a judgment of nil capiat and for costs in both courts entered here against the defendants in error, and this order is accordingly made.\nReversed and judgment here.", "type": "majority", "author": "Mr. Justice Bbowet" } ], "attorneys": [ "Boleh & Stewart, for plaintiff in error.", "Caktston & Poage, for defendants in error." ], "corrections": "", "head_matter": "Nicola Cardella et al., Defendants in Error, v. Tony Perille, Plaintiff in Error.\nGen. No. 14,431.\nAgency\u2014when evidence establishes. Held, that the evidence in this case showed, as a matter of law, that the real estate broker involved in the transaction in question, was not the agent of the prospective purchaser.\nAssumpsit. Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding.\nHeard in this court at the March term, 1908.\nReversed and judgment here.\nOpinion filed April 12, 1909.\nBoleh & Stewart, for plaintiff in error.\nCaktston & Poage, for defendants in error." }, "file_name": "0076-01", "first_page_order": 92, "last_page_order": 96 }