Emerich v. Leviton

9 Citing cases

  1. Bennett v. McCabe

    808 F.2d 178 (1st Cir. 1987)   Cited 9 times
    In Bennett v. McCabe, 808 F.2d 178, 184 (1st Cir. 1987), this court held that a broker would be entitled to a commission under the Tristram's Landing rule where the broker "succeeded in locating a ready, willing, and able purchaser for their property and only [the sellers'] default, due to an inability to convey good title, caused the transaction ultimately to fail."

    Most other states permit a broker to recover a commission where the transaction fails as a result of a defect in the seller's title. See e.g., Tyron Realty Co. v. Hardison, 62 N.C. App. 444, 302 S.E.2d 895, 898 (1983); Emerich v. Leviton, 117 Ill. App.3d 832, 73 Ill. Dec. 301, 303-304, 454 N.E.2d 45, 47-48 (1983); Klawitter v. Straumann, 255 N.W.2d 407, 410-11 (Minn. 1977); Sarna v. Fairweather, 248 Ark. 742, 453 S.W.2d 715, 718 (1970); J.J. Gumberg Co. v. Walworth Co., 346 F.2d 679, 683 (3d Cir. 1965) (Pennsylvania law).

  2. Blitz Telecom Consulting, LLC v. Peerless Network, Inc.

    212 F. Supp. 3d 1232 (M.D. Fla. 2016)   Cited 3 times

    (Contract App. A § 1.1). Illinois courts have long found such an agreement to pay commissions based on another party's performance to establish the requisite debtor-creditor relationship. See, e.g. , Boland Managed Servs., Inc. v. Coral Chem. Co. , No. 4–12–0563, 2013 WL 1787814, at *15 (Ill. App. Ct. Apr. 24, 2013) (finding that a marketing agreement which paid commission to independent sales consultant created a debtor-creditor relationship); Emerich v. Leviton , 117 Ill.App.3d 832, 73 Ill.Dec. 301, 454 N.E.2d 45, 48 (1983) (finding that real estate contract promising to pay $10,000 closing commission to broker created debtor-creditor relationship); Tech. Representatives, Inc. v. Richardson–Merrell, Inc. , 107 Ill.App.3d 830, 63 Ill.Dec. 668, 438 N.E.2d 599, 602–03 (1982) (finding that manufacturer's agreement to pay 7% commission to sales representative established a debtor-creditor relationship).Instead, Peerless's real argument is that the nature of this debtor-creditor relationship changed by virtue of the parties' subsequent modification.

  3. Benson Pump Co. v. South Central Pool Supply

    No. 3:02-CV-0414-RAM (D. Nev. Mar. 28, 2006)

    Kalalinick v. Knoll, 422 N.E.2d 1011, 1018 (Ill.App.Ct. 1981) (refusing to award prejudgment interest based on an oral agreement). Granted, there are several written letters from SCP which assert and evidence that Benson owes $432,461 for the post-closing cash receipts ( e.g., Doc. #75, Exhs. J, K, N), but they do not change the fact that Benson's liability derives from an oral agreement. Lazarra v. Howard A. Esser, Inc., 802 F.2d 260, 270 n. 7 (7th Cir. 1986); Lumbermen's Mut. Ins. Co. v. Slide Rule Scale Eng'g Co., 177 F.2d 305, 311-12 (7th Cir. 1949); Adams v. Amer. Int'l Group, Inc., 791 N.E.2d 26, 30 (Ill.App.Ct. 2003). The letters themselves do not give rise to an obligation to pay. E.g., Arthur Pierson Co. v. Provini Veal Corp., 887 F.2d 837, 839-40 (7th Cir. 1989) (concluding that a written confirmation of an oral contract does not constitute a writing within the meaning of the Illinois Interest Act); Emerich v. Leviton, 454 N.E.2d 45, 48 (Ill.App.Ct. 1983) (determining that a real estate contract which provided for the payment of commission fees to the broker was sufficient under the Act even though the broker's employment arose from an oral agreement). The Illinois Interest Act is inapplicable to the parties' oral side agreement.

  4. Royal Maccabees Life Insurance Company v. Malachinski

    Civil Action No. 96 C 6135 (N.D. Ill. Aug. 22, 2001)

    There must be mutual assent to the agreement or instrument of writing for the settlement of an account, or otherwise there is no evidence of the creation of an indebtedness or of a creditor-debtor relationship. Glassberg v. Leviton, 266 Ill. App.3d 585, 594, 638 N.E.2d 749, 756 (1st Dist. 1994); see Emerich v. Leviton, 117 111. App. 3d 832, 836, 454 N.E.2d 45, 48 (1st Dist. 1983). As such, there was no agreed upon instrument of writing created by the August 9, 1996 letter sent by Royal Maccabees to Malachinski evidencing an indebtedness between Royal Maccabees and Malachinski for the settlement of an account within the scope of the Illinois Interest Act. The intended settlement of the account was not negotiated, voluntarily entered into, or agreed to by Malachinski, and therefore there was no settlement of an account reached.

  5. Gardner v. Ellison

    2017 Ill. App. 3d 160342 (Ill. App. Ct. 2017)

    The case law provides that an exception to the general rule arises when the trust agreement provides the beneficiary of the trust with the exclusive power to direct the trustee to convey title. Paine/Wetzel Associates, 174 Ill. App. 3d at 394; see also In v. Cheng, 232 Ill. App. 3d 165, 171 (1991); Emerich v. Leviton, 117 Ill. App. 3d 832, 835 (1983); First National Bank of Barrington, Trust No. 11-1317 v. Oldenburg, 101 Ill. App. 3d 283, 287 (1981); Rizakos v. Kekos, 56 Ill. App. 3d 404, 405 (1977). Moreover, a sole beneficiary of a land trust may contract as seller to cause title to be conveyed to a purchaser without specifically advising the purchaser of

  6. Glassberg v. Warshawsky

    638 N.E.2d 749 (Ill. App. Ct. 1994)   Cited 6 times

    Kritt cross-appeals the decision of the trial court denying Kritt prejudgment interest on the commission, pursuant to section 2 of the Illinois Interest Act ( 815 ILCS 205/2 (West 1992)). Kritt relies on Emerich v. Leviton (1983), 117 Ill. App.3d 832, 454 N.E.2d 45. However, in Emerich, the seller, buyer and broker all initialled a provision of the sales contract regarding the commission, which rendered it an "instrument in writing" evidencing indebtedness within the scope of section 2 of the Illinois Interest Act. In this case, there is no such mutual assent.

  7. La Salle National Bank v. 53rd-Ellis Currency Exchange, Inc.

    249 Ill. App. 3d 415 (Ill. App. Ct. 1993)   Cited 24 times

    Recognizing both the passive nature of a land trust and the power given a sole beneficiary under a land trust agreement, courts have allowed such beneficiaries to enter into a binding contract for the sale of the land and to bring actions to determine their rights with respect to the management and control of the land. (See Parkway Bank Trust Co., 213 Ill. App.3d at 449; Jacobs v. Carroll (1977), 46 Ill. App.3d 74, 360 N.E.2d 136; House of Realty, Inc. v. Ziff (1972), 9 Ill. App.3d 419, 292 N.E.2d 71; see also Paine/Wetzel Associates, Inc. v. Gitles, (1988), 174 Ill. App.3d 389, 528 N.E.2d 358; Giannini v. First National Bank (1985), 136 Ill. App.3d 971, 483 N.E.2d 924; Emerich v. Leviton (1983), 117 Ill. App.3d 832, 454 N.E.2d 45; Oldenburg, 101 Ill. App.3d at 289-90.) In the context of enforcing a sales contract entered into by the beneficiary of a land trust where the land trust agreement permitted the beneficiary control of the selling, the court in Madigan v. Buehr (1970), 125 Ill. App.2d 8, 17, 260 N.E.2d 431, stated:

  8. Hong Sik In v. Kiyoko Cheng

    232 Ill. App. 3d 165 (Ill. App. Ct. 1991)   Cited 4 times

    As a rule, when a land trust has two or more beneficiaries, a contract to sell the trust property is not enforceable unless all such beneficiaries consent to the sale. ( Emerich v. Leviton (1983), 117 Ill. App.3d 832, 454 N.E.2d 45.) From the evidence presented, we believe that Mr. Cheng fully consented to the sale. In sum, we believe that plaintiff acquired a right in the real property pursuant to the real estate contract.

  9. Hammel v. Ruby

    139 Ill. App. 3d 241 (Ill. App. Ct. 1985)   Cited 18 times

    ) In Emerich v. Leviton (1983), 117 Ill. App.3d 832, 836, 454 N.E.2d 45, 48, the court determined that a broker who had an oral employment contract with a vendor of real estate was entitled to statutory prejudgment interest where the vendor, vendee, and broker had each initialed a paragraph of a real estate contract which provided that vendor would pay a brokerage commission at closing. In the instant case, the parties executed a listing contract which provided that "[t]he commission is due and payable * * * if the property is sold by [defendants]."