White v. Reed & Morton, 111 Ill. App. 262 (1903)

Nov. 9, 1903 · Illinois Appellate Court

111 Ill. App. 262

Nancy E. White, et al. v. Reed & Morton.

1. Verdict—when not disturbed. A verdict will not be disturbed merely because the evidence is contradictory, if the court is of opinion that substantial justice has been done,

Action of assumpsit to recover real estate commissions. Appeal from the Circuit Court of Greene County; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1903.

Affirmed.

Opinion filed November 9, 1903.

H. 0. Withers and Norman L. Jones, for appellants.

Frank A. Whiteside, for appellees.

IVTi?.. Presiding Justioe Brown

delivered the opinion of the court.

This is a suit by appellees against appellants to recover commission for the sale of real estate. The parties waived a jury. A trial by the court resulted in a finding and judgment for plaintiffs for $2,000. The defendants appeal.

The property consisted of 6,458 acres of bottom land lying along the back of the Illinois’ Eiver, in Greene County, of this state. The land was heavily encumbered and had to be sold within a short time or the value of the equity of redemption would be lost to the appellants.

The undisputed evidence shows that, by the original contract between the parties, appellees were to have as commission what they could get for the land in excess of seven and a half dollars per acre. It is also undisputed that the land did not sell for enough to entitle appellees to any commission on that basis.

The controverted and important question of fact is whether the parties subsequently changed the terms of the contract so as to entitle appellees to commission, notwithstanding the land did not sell for-seven and a half dollars per acre. The trial court so found. The evidence bearing upon the question consists of a lengthy correspondence between the parties and voluminous oral testimony. The undisputed evidence shows that appellees found the party who purchased the land; that it was sold for cash, for $41,500; that appellees obtained and submitted this offer to appellants, who accepted it, and then declined to pay a commission; the evidence further shows that appellees previously obtained and submitted an offer of $46,000 in cash for the property, which appellants refused to accept.

We are of the opinion that the evidence justified the finding of the trial court that the parties had abandoned the original contract and that the appellants were entitled to recover commission upon the amount for which the land sold.

Finding the record free from error, and believing that the judgment of the trial court administered substantial justice to the parties, it will be affirmed.

Affirmed.