dissenting:
The majority holds that the record does not contain enough facts to determine, as a matter of law, “whether the terms Smith objected to were essential rather than incidental terms, so as to prevent the parties from reaching a bargain or defining a contract.” (157 Ill. App. 3d at 931.) The majority concludes, therefore, that the trial court erred in entering summary judgment for Smith. I believe that summary judgment is appropriate in this case. The record shows that Smith and Heiman never reached agreement on essential terms to form a contract. Thus, Kaufman did not earn his commission because he never produced a buyer who was ready, willing, and able to buy on the seller’s terms. I would affirm the judgment of the trial court. Consequently, I respectfully dissent.
When a plaintiff appeals from a trial court’s entry of summary judgment for a defendant, the only issue on appeal is whether “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (111. Rev. Stat. 1985, ch. 110, par. 2 — 1005(c).) If the documents that the trial court considers show that a genuine issue exists as to any material fact, summary judgment should not be granted. If fair-minded persons could draw different conclusions from the evidence, the issues should be submitted to the trier of fact to determine what conclusion seems most reasonable. Conversely, when the evidence shows that no genuine issue of material fact has been raised, the moving party is entitled to judgment as a matter of law. Artis v. Fibre Metal Products (1983), 115 Ill. App. 3d 228, 231-32, 450 N.E.2d 756, 758.
Further, where a seller employs a broker to sell property, the broker earns his commission if he produces a buyer who is ready, willing, and able to buy the property on the seller’s terms, even though the seller later refuses to perform on the contract. In such a case, however, the broker must prove the readiness, willingness, and ability of the buyer to purchase the property on the seller’s terms. (Solomon v. Baron (1984), 123 Ill. App. 3d 255, 259, 462 N.E.2d 756, 759, quoting Fox v. Ryan (1909), 240 Ill. 391, 396, 88 N.E. 974, 976.) Although it is ordinarily a question of fact whether a broker has procured such a buyer, we have affirmed the entry of summary judgment where the pleadings and other materials show as a matter of law that the buyer did not comply with the seller’s terms. 123 Ill. App. 3d 255, 259-60, 462 N.E.2d 756, 759.
I
Kaufman first claims that the letter of intent between Smith and Heiman was an enforceable contract. Kaufman contends that this contract proves that he produced a buyer, Heiman, who was ready, willing, and able to buy on Smith’s terms. The majority holds that the record does not show, as a matter of law, whether the letter of intent amounted to an enforceable contract. I disagree.
A letter of intent is a document that embodies the essential terms of a contract, yet recites that the parties will execute a more formal agreement. The letter is enforceable if the parties intend it to be contractually binding. If the parties intend the letter to be binding, a mere recitation in the writing that a more formal agreement was yet to be drawn will not defeat their intent. Interway, Inc. v. Alagna (1980), 85 Ill. App. 3d 1094, 1097-98, 407 N.E.2d 615, 618.
The parties may, however, specifically proride that negotiations are not binding until they, in fact, execute a formal agreement. If the parties construe the execution of a more formal agreement as a condition precedent, then no contract arises until they execute that formal agreement. Further, where the language of a contract is unambiguous, its meaning is for the trial court to determine as a matter of law. 85 Ill. App. 3d 1094, 1098, 407 N.E.2d 615, 618-19.
The letter of intent in the instant case provided, in pertinent part, as follows:
“9. Formal contract to be prepared by buyer — A formal contract shall be prepared by the Purchaser and tendered to the Sellers for signing no later than ***. If the Sellers reject the formal contract the letter of intent shall be null and void and shall have no legal effect and no action shall be brought to enforce same.”
This provision shows that Smith and Heiman did not intend for the letter to bind them. The letter of intent provided that the buyer must prepare a contract, which the seller must accept. Importantly, the letter further provided that if the seller rejected the contract, then the letter was void. The letter of intent did not contain a mere recitation of a contract yet to be drawn. Rather, the letter explicitly required the buyer to prepare a more formal agreement that the seller must accept. I believe that the provision is unambiguous; thus, this court may construe it as a matter of law. I would hold, therefore, that the letter of intent between Smith and Heiman was not an enforceable contract.
II
Kaufman alternately contends that he is entitled to his commission from Smith, even if the letter of intent between Smith and Heiman was not an enforceable contract, because he nevertheless produced a buyer who was ready, willing, and able to buy on the seller’s terms. The majority holds that the record does not contain enough facts to determine, as a matter of law, that Smith and Heiman never reached agreement on essential facts, preventing them from forming a contract. I disagree.
To be enforceable, a contract’s terms must be so definite and certain that a court can require the specific thing contracted for to be done. The terms must be clear, certain, and free from ambiguity and doubt. The contract need not provide for every collateral matter or every possible future contingency that might arise. It is sufficiently definite and certain if the court is able to ascertain what the parties agreed to do, from the contract’s terms, under proper rules of construction and applicable principles of equity. (Morey v. Hoffman (1957), 12 Ill. 2d 125, 130-31, 145 N.E.2d 644, 647-48.) Further, “[cjonstruction of a contract is a pure question of law and the court must determine this from the document’s clear language.” Marvin N. Benn & Associates, Ltd. v. Nelsen Steel & Wire, Inc. (1982), 107 Ill. App. 3d 442, 446, 437 N.E.2d 900, 903.
Applying these principles to the instant case, I conclude that Kaufman did not produce a buyer who would buy on the seller’s terms. I believe that sufficient differences exist between the letter of intent and the final contract as to prevent a meeting of the minds. Viewing the entire record, I would hold, as a matter of law, that Smith and Heiman never formed a contract. Kaufman, therefore, did not produce a buyer who was ready, willing, and able to buy on the seller’s terms and, thus, did not earn his commission.
For the foregoing reasons, I would affirm the judgment of the trial court.