Merigold v. Twentieth Century Theater & Amusement Co., 199 Ill. App. 285 (1916)

April 28, 1916 · Illinois Appellate Court · Gen. No. 21,290
199 Ill. App. 285
Arthur S. Merigold, Appellee, v. Twentieth Century Theater & Amusement Company, Appellant

Arthur S. Merigold, Appellee, v. Twentieth Century Theater & Amusement Company, Appellant.

Gen. No. 21,290.

(Not to he reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.

Affirmed.

Opinion filed April 28, 1916.

Rehearing denied May 11, 1916.

Statement of the Case.

Action of the first class in the Municipal Court of Chicago by Arthur S. Merigold, plaintiff, against Sol H. Goldberg and the Twentieth Century Theater & Amusement Company, a corporation, defendants, to recover commissions alleged to be due him as a real estate broker for the sale of premises. Plaintiff claimed the sum of $2,125, being two and one-half per cent, of $85,000, the sale price of the premises. The defendants entered a joint appearance, and, by an agent, filed an affidavit of merits in which it was stated, in substance, that neither of them employed plaintiff to sell the premises or agreed to pay him any sum for *286making such sale; that they were not jointly liable to plaintiff; that plaintiff was not the procuring cause of the sale, in that the premises were sold for the defendant company by a broker named Kipper, to whom it paid an agreed commission for said sale. The cause was tried before the court without a jury. After plaintiff’s evidence in chief had been heard, the cause was dismissed as to the defendant Sol II. Goldberg, but the motion of the defendant company for a finding in its favor was denied. At the conclusion of all the evidence the court found the issues ag’ainst the defendant company and assessed plaintiff’s damages at $2,125, upon which finding judgment for $2,125 against the defendant company was entered. From this judgment defendant company appeals.

Abstract of the Decision.

1. Corporations, § 264 * —when evidence sufficient to show power of officers to hind company. In an action against a corporation to recover commissions on the sale of real estate, where the evidence shows that plaintiff acted under an agreement with the president of defendant and its secretary, who with two others constituted the directors and stockholders, and that the other two knew that plaintiff was acting as broker in the matter and made no objection and that the contract of sale was ratified in writing by all of the directors and stockholders, it was held that the officers had authority to bind defendant by employing plaintiff, even though there was no resolution of the board of directors authorizing the officers to do so.

2. Brokers, § 8*—when evidence sufficient to show employment of hrolcer and agreement for commissions. In an action by a broker to *287recover commissions, evidence examined and held to show that plaintiff was employed by defendant to act as broker on its behalf to bring about a sale of the premises at a specified price, and that he was to receive the customary commission for his services.

*286Blum & Blum, for appellant.

John H. Coulter and Edgar L'. Masters, for appellee.

Mr. Presiding Justice Gridley

delivered the opinion of the court.

*2873. Brokers, § 90 * —when evidence insufficient to show termination of employment. In an action by a broker for commissions, evidence examined and held to show that plaintiff’s employment was not terminated nor abandoned by him.

4. Brokers, § 27*—when right to commission not affected. In an action by a broker for commissions where the evidence shows that plaintiff first presented to defendant a purchaser who offered and was able to pay the price fixed and who subsequently bought the premises for that sum, his right to his commission is not affected whether the purchaser acted for himself in purchasing or as agent of a company of which he was the president and controlling stockholder.

5. Brokers, § 37*—when evidence sufficient to show procuring cause of sale. In an action by a broker for commissions, evidence examined and held to show that he and not another was the procuring cause of the sale although he was not present at the execution of the contract, and though the amount of the monthly deferred payments was greater than he had offered.

6. Brokers, § 91*—when evidence insufficient to show fraud. In an action by a broker for commissions on the sale of realty, evidence examined as to agreement of plaintiff to divide commissions with one of defendant’s officers and held not to show fraud.