dissenting.
Both the trial court and this Court agree that plaintiff presented sufficient evidence of waiver of the ex-elusionary provision of the written brokers agreement entered into by plaintiffs and defendants on October 16, 1967, which provided in pertinent part as follows:
“Marshall L. Skelcher and Martha E. Skelcher agree to pay John MacCarthy $15,000.00 commission for selling the Lake View Hunt Club for $165,000.00 to one of his clients. However, in the event that Skelcher sells the club himself to somebody that is not one of MacCarthy’s clients; Marshall L. Skelcher and Martha E. Skelcher will not owe any commission to John MacCarthy. This agreement shall expire 45 days from date.”
No one contends that it is ambiguous.
In view of defendants’ contention, by way of special defenses, that plaintiff in order to earn his fee must have promoted some investment funds so that the purchaser or purchasers could perform financially, evidence that plaintiff’s right to the commission was contingent upon success of the promotional scheme was admissible. But the burden of proof on special defenses was on defendants.
None of plaintiff’s evidence, either by direct or by cross-examination, supports the special defenses. On behalf of defendants, Mr. Skelcher testified principally to the effect that the purchasers were not MacCarthy’s clients, and that he had not waived the exclusionary clause, a position which both the trial court and this Court agree was not supported by the evidence. Skelcher’s testimony that MacCarthy’s fee was contingent on success of the promotional scheme was certainly not clear nor preponderant. It does not suggest that such was the condition imposed at the time of signing the agreement on October 16, 1967, but suggests that when Skelcher subsequently advised plaintiff of the prospective purchasers and suggested MacCarthy get in touch with them and attempt to close the sale with them, there came into being an understanding that MacCarthy’s commission was contingent on MaeCarthy’s promotion of a part of the funds to effect a purchase. Obviously, at that time Skelcher had not accepted either the purchasers or the terms of the contract calling for no cash. That evidence cannot be said to be sufficient to prove that MacCarthy waived the unambiguous provisions of the brokerage agreement, or that MacCarthy agreed to alter its terms.
The other witness, Grindle, whom plaintiff called to support the contingent fee theory positively stated that he never discussed the matter of the brokerage fee with MacCarthy from the time MacCarthy was put in touch with him by Skelcher, in the last part of October or early November, until after the matter was closed at the bank on November 15. He did not testify to any admission of MacCarthy or any conversation between Skelcher and MacCarthy to the effect that MacCarthy’s fee was contingent. He testified that he and MacCarthy discussed the promotional idea, the purchase without cash and the possibility of MacCarthy promoting some investors both before the final papers were signed and after, but he concluded “MacCarthy’s conversation with regard to stock and membership was friendly, helpful talk rather than a direct commitment.”
The evidence of MacCarthy’s conduct during all the time in question was consistent with that of a broker obtaining a purchaser for his client. The evidence is not consistent with the theory that MacCarthy was employed as agent of the proposed incorporators or of Skelcher to seek investment funds. Everyone knew that MacCarthy was not licensed to sell investments or shares of stock. I find no evidence from which it can reasonably be inferred that MacCarthy waived the plain and unambiguous terms of the brokerage contract executed on October 16.
Defendants do not contend that the contract for purchase agreement, which was signed by Skelchers on September 8th and which contained the terms of the sale was void because the party of the second part did not enter into it within 5 days. When the parties met at the bank on November 15, Skelcher accepted the execution of the mortgages and all the instruments delivered to the bank including a title policy and his deed, knowing that no cash was available, but hoping someone would raise some; there is no testimony that he objected to either the terms or the purchasers, nor is there any testimony that he advised MacCarthy at that time that his commission would be contingent on some money being paid to the bank. Skelcher accepted the deal as there executed that day. There can be no question that the “Offer to purchase and deposit receipt” executed by plaintiff as broker on November 3, was superseded by the “Contract for Purchase Agreement” dated November 8 and the subsequent closing. As a result Cabry v. Ionidas, 122 Ill App2d 167, 258 NE2d 45, is not applicable here.
The case of Fox v. Ryan, 240 Ill 391, 88 NE 974 (1909), was an action in assumption to recover a $4,000 commission claimed by plaintiff-broker to be due him for services rendered in effecting a sale of defendant’s mining stock. The seller knew of the potential purchaser some years before engaging the broker. He requested the broker to direct his efforts toward effecting a sale to this particular purchaser. The broker was successful in that a contract of sale was entered into by mutual agreement of seller and purchaser; subsequently the purchaser forfeited. The court stated the law as follows:
“Where a broker is employed to sell property by the owner, if he produces a purchaser within the time limited by his authority, who is ready, willing and able to purchase upon the terms proposed by the seller he is entitled to his commissions, even though the seller refuses to perform the contract on his part. In such case, however, it is necessary for the broker to prove the readiness, willingness, and ability of the purchaser to take the property on the terms proposed. But where the seller accepts the purchaser and enters into a valid contract of sale with him, the broker’s commission is earned whether the purchaser subsequently fails to perform his contract and make the payments agreed upon or not. 240 Ill 396.”
And at page 397:
“The vendor of property is not required to accept a purchaser without opportunity or investigation as to his ability to comply with the terms of the contract, but where he does accept such purchaser, uninfluenced by fraud or misrepresentation, it is a determination by him of the purchaser’s ability to perform his contract, and if the purchaser afterwards fails to perform it, the seller cannot defeat the broker’s commissions on the ground that the purchaser was not able to buy the property.”
Here the ultimate contract was signed and performed to the satisfaction of defendants who delivered their deed and title policy with knowledge that the purchasers had no funds at that time with which to satisfy any of the obligations they had made to eventually compensate the sellers for the purchase price. Neither the brokerage agreement nor any of the instruments delivered to the bank provided plaintiff’s commission was to be paid from the proceeds of the sale. The broker performed to the satisfaction of the sellers in consummating a deal which they knowingly accepted; no terms of sale nor reference to any contract of sale were made in brokerage agreement. Under such circumstances plaintiff’s fee should not be withheld because the purchasers did not perform. See Farber v. Fleck, 51 Ill App2d 145, 200 NE2d 903.
I would therefore reverse the judgment and enter judgment for plaintiff.