{
  "id": 2894437,
  "name": "Ella L. Fisk, Plaintiff in Error, v. L. M. Smith et al., trading as L. M. Smith & Brother, Defendants in Error",
  "name_abbreviation": "Fisk v. Smith",
  "decision_date": "1915-03-29",
  "docket_number": "Gen. No. 20,460",
  "first_page": "186",
  "last_page": "189",
  "citations": [
    {
      "type": "official",
      "cite": "192 Ill. App. 186"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 360,
    "char_count": 7446,
    "ocr_confidence": 0.542,
    "sha256": "27ca70ba8308b335ddd073e9d9eed25f129490c85361a5a5790888fec2c221f7",
    "simhash": "1:3046906f7cd9e999",
    "word_count": 1320
  },
  "last_updated": "2023-07-14T19:32:59.384140+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Ella L. Fisk, Plaintiff in Error, v. L. M. Smith et al., trading as L. M. Smith & Brother, Defendants in Error."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Brown\ndelivered the opinion of the court.\nThis is a writ of error brought to reverse a judgment of nil capiat and for costs rendered by the Municipal Court of Chicago against Ella L. Fisk, the plaintiff in that court and plaintiff in error here, who brought suit against L. M. Smith, F. M. Smith and F. C. Otis, who are partners doing business as L. M. Smith & Bro. L. M. Smith & Bro. are real estate agents. In April, 1913, they were acting as agents for the plaintiff, Ella L. Fisk, in collecting the rents of some real estate owned by her, described as Lot 1 in the Subdivision of Lot 29 and the north 25 feet of Lot 30 in Grigg\u2019s Subdivision, etc., and known as 3721 Prairie avenue, Chicago. She had requested the defendants to sell this property for the best price that they could obtain for it. On April 24, 1913, therefore, they negotiated a sale of it and received a written memorandum of agreement signed \u201cMarvine Canty By Jesse Binga,\u201d which was produced in evidence. According to a letter of L. M. Smith & Bro., also put in evidence, Jesse Binga acted as the agent of Marvine Canty, who was his sister.\nThe agreement or \u201creal estate contract\u201d (which was signed as above stated and by no one else) provided that Marvine Canty agreed to purchase at the price of $2,700 the described real estate, and Ella L. Fisk agreed to sell at said price and to convey, etc. It recited that the purchaser had paid $100 \u201cas earnest money to be applied on such purchase when consummated, and agrees to pay within five days after the title has been examined and found good or accepted * * * the further sum of $2,600.\u201d It also contained these provisions:\n\u2018 \u2018 Should said purchaser fail to perform this contract promptly on his part at the time and in the manner herein specified, the earnest money paid as above shall at the option of the vendor be retained by the vendor as liquidated damages, and this contract shall thereupon become null and void. * * *\nThis contract and the said earnest money shall be held by L. M. Smith & Bro. for the mutual benefit of the parties concerned, and after the consummation of the sale they shall be at liberty to retain the cancelled contract permanently; and it shall be the duty of said L. M. Smith & Bro., in case said earnest money be retained as herein provided to apply the same, first, to the payment of any expenses incurred for the vendor by his agent in said matter, and second, to the payment to vendor\u2019s broker of a commission of......per cent on the selling price herein mentioned, for his services in procuring this, contract, rendering the over-plus to the vendor.\u201d\nAt the same time, however, a paper headed \u201cJoint Order Escrow No. 1\u201d was signed by \u201cL. M. Smith & Brother By E. B. Evans\u201d (Evans was a salesman and agent of L. M. Smith & Brother) and by \u201cMarvine Canty By Jesse Binga,\u201d which contained this recital: \u201cThe accompanying contract & $100 are deposited with the Chicago Title & Trust Company to be delivered by it only upon the joint order of the undersigned or their respective legal representatives or assigns.\u201d On the same paper was the following direction to the Chicago Title & Trust Company, also signed by \u201cL. M. Smith & Brother By E. B. Evans\u201d and by \u201cMar-vine Canty By Jesse Binga: \u2019 \u2019\n\u201cIf balance of purchase price is not deposited by 10 a. m. May 24, 1913, you are authorized and directed to pay the sum of $50 to L. M. Smith & Bro. and $50 to Jesse Binga.\u201d\nThe contract, the $100 and this document, \u201cJoint Order Escrow No. 1\u201d were deposited with the Chicago Title & Trust Company. The purchaser \u201cfailed to materialize,\u201d to quote the testimony of Mr. Evans in this case. The sale and conveyance were not made. This was solely owing to the default of the purchaser. Thereupon, on demand of the parties, the Chicago Title ' & Trust Company paid over $50 to L. M. Smith & Bro. and $50 to Jesse Binga, in acordance with the order be-for@ T6cit6cl.\nThe plaintiff, Ella L. Fisk, thought the $100 should come to her and demanded it from the defendants, and failing to get it brought suit.\nThe trial judge in the Municipal Court, sitting without a jury, found for the defendants and this writ of error, as stated, is brought to reverse that judgment.\nWe think the judgment was correct. Whatever remedy, if any, for breach of contract against Marvine Canty the plaintiff may have had, she had, no right to treat the $100 deposited as \u201cliquidated damages\u201d and retain it, except the right given to her by the \u201creal estate contract\u201d and by the \u201cJoint Order Escrow No. 1,\u201d executed at the same time and in the same matter by the same party and also by L. M. Smith & Bro., which must be considered a part of and be construed with it. Taking the two documents and their various provisions above recited together, it is apparent that the agreement made by Marvine Canty through Jesse Binga was that if she did not complete the purchase the $100 should be divided between her broker or agent and Mrs. Fisk\u2019s broker or agent for commissions and services; and this was the contract that Mrs. Fisk, who only acted through L. M. Smith & Bro., must be presumed to have accepted if she accepted any.\nWe think the judgment is in accordance with justice and the rights of the parties, and it is affirmed.\nAffirmed.",
        "type": "majority",
        "author": "Mr. Presiding Justice Brown"
      }
    ],
    "attorneys": [
      "Brode B. Davis, for plaintiff in error.",
      "P. H. Bishop, for defendants in error."
    ],
    "corrections": "",
    "head_matter": "Ella L. Fisk, Plaintiff in Error, v. L. M. Smith et al., trading as L. M. Smith & Brother, Defendants in Error.\nGen. No. 20,460.\nVendor and purchaser, \u00a7 298 \u2014when vendor not entitled to earnest money on default of purchaser. A contract for the sale of real estate recited that the purchaser had paid $100 as earnest money and provided that should the purchaser fail to perform, the earnest money should, at the vendor\u2019s option, he retained as liquidated damages; that it should he held by her agents for the mutual benefit of the parties and. that in the event of the retention of the money, it should be such agents\u2019 duty to apply it, first, to the payment of any expenses incurred for the vendor by her agents and second, to the payment to the vendor\u2019s broker of a commission of \u201c..........per cent on the selling price\u201d for his services in pro-\ncuring the contract, rendering the overplus to the vendor. At the same time the vendor\u2019s agents and the purchaser by her agent executed a joint escrow agreement which recited that \u201cthe accompanying contract & $100 are deposited\u201d with a trust company \u201cto be delivered by it only upon the joint order of the undersigned or their respective legal representatives or assigns.\u201d On the same paper was a direction to the trust company, signed in the same manner as the escrow agreement, that if the balance of the purchase price was not deposited by a day named, the trust company was authorized and directed to pay $50 to the vendor\u2019s agents and $50 to the purchaser\u2019s agent. The purchaser having defaulted and the sale not having been made, the trust company, on demand, paid $50 to the vendor\u2019s agents and $50 to the purchaser\u2019s agent. In an action by the vendor against her agents to recover the $100 earnest money, it was held that a judgment for defendants was proper.\nError to the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding. Heard in this court at the October term, 1914.\nAffirmed.\nOpinion filed March 29, 1915.\nBrode B. Davis, for plaintiff in error.\nP. H. Bishop, for defendants in error.\nSee Illinois Notes Digest, Vols. XI to XV, \u201cand Cumulative Quarterly, same topic and section number."
  },
  "file_name": "0186-01",
  "first_page_order": 210,
  "last_page_order": 213
}