{ "id": 5129309, "name": "Ellis v. Dunsworth, Administratrix, etc.", "name_abbreviation": "Ellis v. Dunsworth", "decision_date": "1893-06-26", "docket_number": "", "first_page": "187", "last_page": "192", "citations": [ { "type": "official", "cite": "49 Ill. App. 187" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "51 N. Y. 124", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2061417 ], "opinion_index": -1, "case_paths": [ "/ny/51/0124-01" ] }, { "cite": "29 Minn. 126", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 8875337 ], "opinion_index": -1, "case_paths": [ "/minn/29/0126-01" ] }, { "cite": "50 Mo. 150", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 980469 ], "opinion_index": -1, "case_paths": [ "/mo/50/0150-01" ] }, { "cite": "111 Ind. 70", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1353722 ], "opinion_index": -1, "case_paths": [ "/ind/111/0070-01" ] }, { "cite": "55 N. Y. 319", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 517386 ], "opinion_index": -1, "case_paths": [ "/ny/55/0319-01" ] }, { "cite": "52 Mo. 249", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 972130 ], "opinion_index": -1, "case_paths": [ "/mo/52/0249-01" ] }, { "cite": "42 Kan. 664", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 1217315 ], "opinion_index": -1, "case_paths": [ "/kan/42/0664-01" ] }, { "cite": "131 Ill. 126", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5418366 ], "opinion_index": -1, "case_paths": [ "/ill/131/0126-01" ] }, { "cite": "5 Baxter, 609", "category": "reporters:state", "reporter": "Baxt.", "opinion_index": -1 }, { "cite": "75 Ill. 141", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2701858 ], "opinion_index": -1, "case_paths": [ "/ill/75/0141-01" ] }, { "cite": "17 Brad. 77", "category": "reporters:state", "reporter": "Bradf.", "opinion_index": -1 }, { "cite": "92 Ill. 218", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2739689 ], "opinion_index": -1, "case_paths": [ "/ill/92/0218-01" ] }, { "cite": "34 Ill. 108", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5288487 ], "opinion_index": -1, "case_paths": [ "/ill/34/0108-01" ] }, { "cite": "21 Brad. 600", "category": "reporters:state", "reporter": "Bradf.", "opinion_index": -1 }, { "cite": "20 Ill. 192", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 } ], "analysis": { "cardinality": 602, "char_count": 11053, "ocr_confidence": 0.399, "pagerank": { "raw": 6.347464893914651e-08, "percentile": 0.38943274299003533 }, "sha256": "500e7d605e7d275437d862a13bf41bf39403fb73c1e507f98b4c181241c5a38e", "simhash": "1:9e5e3ef29a5e33a8", "word_count": 2014 }, "last_updated": "2023-07-14T18:20:14.004565+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Ellis v. Dunsworth, Administratrix, etc." ], "opinions": [ { "text": "Opinion on the Court,\nPleasants, J.\nAppellant owned a farm of 160 acres, near Augusta, where he resided, in Hancock County, and the deceased published a newspaper and carried on the business of a real estate agent at Plymouth, some five miles distant. About the middle of August, 1891, deceased called on appellant and asked if his farm was for sale, to which appellant replied no, not in the sense that he was hunting a buyer or advertising it, but that it was like other people\u2019s property, he supposed, that he had a price on it and if any one came along and offered him that price, he would sell. Being asked what that price was, he answered, \u00a730 an acre, at that time. Deceased then asked him if he would put the land in his hands to sell, and was answered flatly, no; that he was capable of transacting his own business and wanted no assistance. Deceased then remarked that he couldn\u2019t make anything out of it in that way. Appellant told him that it was his farm and he proposed to make whatever there was to make. He \u2022 then said \u201c if you make anything at all you will have to make it out of the other fellow.\u201d\nDeceased then went off and in a few days brought a man who he said was willing to give $31 per acre for it, and asked appellant to take him up and show it. He did so and says: \u201c I showed him all its advantages and did my best to assist Mr. Dunsworth in effecting a sale to that man, and intending that if he effected that sale he would make $1 on each acre, making $160 * * * and I should have allowed it without a word.\u201d The man asked a week\u2019s time to reflect. Appellant told him that he didn\u2019t care to give him a minute, that if he wanted to trade 'with Mr. Dunsworth, he could. But seeing that Dunsworth was anxious he should have the time asked, he gave it, and said to the man \u201cif no one came and offered more, the farm would be there at that price, one week from to-day.\u201d\nThe man did not return nor make the purchase. Deceased advertised the farm in his paper, sending several numbers containing the advertisement to appellant, and by personal solicitation endeavored to effect a sale. Some parties he took to the farm, and others he directed and sent there to examine it, but they were not induced to buy. At length, early in October, he saw Reuben Powell, took him into his office, talked up the matter with him, told him the farm could be bought for about $5,000 and was a bargain, and getting nothing definite from him on that occasion, asked him to come again the next day, offering to show it to him, etc. Powell did not say whether he would or would not come. He did not come, but went and looked at the farm, and then went to appellant and bought it of him directly, for $31 per acre, making a purchase on the 16th of October, 1891. Dunsworth, having learned the fact, called on him for the $160, and being refused, brought this suit before a justice of the peace, and in the trial on appeal obtained a verdict and judgment for the full amount claimed.\nIt is conceded that the instructions to the jury, which were given orally by consent, were proper and fair; but appellant insists there were two errors, for \u00e9ither of which the judgment should be reversed, viz.: Pirst, the refusal to set aside the verdict for want of evidence sufficient to support it, and second, the exclusion of one item of evidence offered for the defendant.\nWe infer from the argument that the findings claimed to be so unsupported are, that deceased was authorized by appellant to render service in procuring a purchaser, and that he was in fact instrumental in procuring the purchase by Powell.\nAs to the first, it is said that according to the testimony of both the parties, appellant distinctly and peremptorily refused to give him such authority; and it is true that they do not differ materially as to what was said in the conversation between them, which was what deceased relied on as evidence of his right to act and be compensated as broker. The account of it above given is that of appellant, and as we think, shows that the refusal was only of the authority or agency asked, and that was an agency to find a purchaser at the price of $30 per acre. He wanted no broker or agent to get that price and take a portion of it for commissions, but had no objection nor reason to object to the services of a broker to get it and his commissions from the purchaser. It could make no difference to appellant whether he got them as commissions, directly from the purchaser, or from the price obtained in excess of that which he, appellant, was content to receive. Hunsworth\u2019s statement of that conversation, while substantially the same as that of appellant, somewhat more clearly shows an understanding that he was authorized to find a purchaser upon those terms.\nThe testimony of young Hr. Ellis, son of appellant, who heard the conversation, tends to show that he so understood, and appellant\u2019s statement that he did his best to \u201c assist Dunsworth\u201d in effecting a sale to the man he first presented, and would have allowed him the excess if it had been effected, is evidence strongly tending to show he also understood it the same way. The testimony of Dunsworth is, that with that understanding on his part, he advertised the property for sale in his paper and made the efforts he did to find a purchaser. We think this evidence was quite sufficient to support the finding that he was authorized by appellant so to do.\nUpon the other question, Powell testified, as a witness for appellant, that \u201c probably what DunsAvorth said might have had some Aveight,\u201d and the circumstances seem to shoAv it had. Eesiding in the neighborhood, in McDonough. County, he had known this farm in a general way for years, and had been informed, perhaps a month before his conversation Avitli DunsAvorth, that it Avas for sale; but it does not appear that he knew anything about the price at AAdiich it Avas held or had looked at itAvith any view of buying it. He told DunsAvorfch at the beginning of their conversation, that he had sold his farm, but did not know that he avouM purchase another\u2014that he guessed he would go Avest\u2014and then inquired about another, the Bickford farm; hut after the talk he did go to see the Ellis farm, and within two weeks bought it. Appellant did not find him nor in any Avay communicate Avith him. If anybody but Dunsworth, or anything but his solicitation induced him to look at and buy it, the fact does not appear. We are therefore of opinion that there was evidence on Avhich the jury might well find that he Avas efficiently instrumental in procuring that purchase.\nAppellant haA\u00dang said that he had advanced the price, Avas asked by his counsel to state the Aalue of the lands around there Avhen he sold, as compared Avith Avhat it was Avhen DunsAvorth first came to see him; to Avhich an objection by plaintiff Avas sustained. That ruling is the other error assigned.\nThe only object of the testimony offered Avas to sIioav that he had not adAanced the price capriciously, AAdthout some reason founded on the actually enhanced market value of lands generally in that neighborhood. But the question was not one of reason for making an adAancement, hut of his right to make it, under the circumstances, as against DunsAvorth. He kneAV that Dunsworth had been and Avas endeavoring to find a purchaser at a price exceeding $30 per acre, with the understanding that if he effected it, he Avas to have the excess for his compensation; and yet he did not offer to show, nor is it claimed that he gave him any notice of any advancement. If DunsAvorth Avas not authorized to find a purchaser upon those terms, or did not find one, appellant\u2019s right to make the advancement was absolute, and the reason for it therefore immaterial; and if he was so authorized and did find him, appellant had no right to make it without notice to him, for the reason referred to, or any other. In either case it was immaterial. We see no error in the ruling. Judgment affirmed", "type": "majority", "author": "Pleasants, J." } ], "attorneys": [ "O\u2019Harra, Schofield & Hartzell, and W. H. Mead, appellant\u2019s attorneys.", "Appellee\u2019s Brief, Sharp & Berry Bros., Attorneys." ], "corrections": "", "head_matter": "Ellis v. Dunsworth, Administratrix, etc.\n1. Contracts\u2014Sale of Real Estate by Agiere#.\u2014Appellee approached appellant with a view of inducing him to list his real estate with his agency for sale. He was told that the farm, was not for sale, in the sense that he was hunting a buyer, but like other people, he had a price, and that if any one came along and offered him that price he would sell it. That he had held his farm at thirty dollars an acre. Appellee said in reply, \u201cWill you place yoru- farm in my hands to sell?\u201d to which he replied, \u201cNo sir! I am capable of transacting my own business, and so long as that condition continues, I do not want to employ any man to transact it -for me. It is my farm, and I propose whatever there is in it, to make, and if you make anything out of the sale of my farm, you must make it out of the other fellow.\u201d Appellee afterward advertised the farm in a paper owned by him, and by personal solicitations, endeavored to effect a sale, etc; took a man into his office, talked the matter over, told him it was a bargain, etc. The man went to appellant and bought the farm at \u00a781 per acre; upon the trial the jury found for appellee, for the amount. Eeld, that the evidence was sufficient to support the verdict.\nMemorandum.\u2014Action of assumpsit. Appeal from a judgment rendered by the Circuit Court of Hancock County; the Hon. Charles J. Scofield, Circuit Judge, presiding. Heard in this court at the November term, A. D. 1893, and affirmed.\nOpinion filed June 26, 1893.\nO\u2019Harra, Schofield & Hartzell, and W. H. Mead, appellant\u2019s attorneys.\nAppellee\u2019s Brief, Sharp & Berry Bros., Attorneys.\nThe jury are the judges of the weight the evidence is entitled to receive, and unless their verdict is clearly wrong, it will not be disturbed. Goodell v. Woodruff, 20 Ill. 192; The City of Elgin v. Riordan, 21 Brad. 600; Chicago & R. I. R. R. Co. v. Hutchens, 34 Ill. 108; Howitt v. Estelle, 92 Ill. 218. Where the evidence is conflicting and the jury are properly instructed as to the law of the case, their verdict must be regarded as settling the controverted fact. Powers v. Cavenaugh, 17 Brad. 77; Kightlinger v. Egan, 75 Ill. 141.\n\"Where an agent is employed to sell real estate, and such agent produces a person who ultimately buys the property, the agent is entitled to his commissions, although the trade may have been consummated by the owner,of the property. Arrington v. Cary, 5 Baxter, 609; Monroe v. Snow, 131 Ill. 126; Plant v. Thompson, 16 A. S. R. 512; 42 Kan. 664.\nIn Tyler v. Parr, 52 Mo. 249, the court say: \u201c The law is well established that in a suit by a real estate agent for the amount of his commission it is immaterial that the owner sold the property and concluded the bargain. If, after the property is placed in the agent\u2019s hands, the sale is brought about, or procured by his advertisements and exertions, he will be entitled to his commissions. Sussdorff v. Schmidt, 55 N. Y. 319; Williams v. Leslie, 111 Ind. 70; Bell v. Kaiser, 50 Mo. 150; Armstrong v. Wann, 29 Minn. 126; Lloyd v. Matthews, 51 N. Y. 124." }, "file_name": "0187-01", "first_page_order": 183, "last_page_order": 188 }