§ 213. (Agency, Sec. 29.) When compensation considered earned.

Case 215. Fox v. Ryan, 240 Ill. 391.

Facts: Fox sues to recover $4,000 as commissions claimed to have been earned by him as agent in selling Ryan's mining stock. Ryan procured a purchaser who entered into a contract, but the contract was never carried out by the purchaser.

Point Involved: Whether a broker to sell who procures a purchaser who is accepted by and enters into a contract with the seller, is entitled to his commission if the purchaser refuses to perform the contract.

The second

MR. CHIEF JUSTICE FARMER: proposition asked by the appellant was, that merely procuring a person to enter into a contract for the purchase of property does not entitle a broker to commissions unless such person was ready, willing and able to make the payments, including deferred payments, named in the contract. The Court modified this proposition by adding, 'unless the defendant accepted the purchaser.' The proposition as modified was correct. 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 the property upon the terms imposed 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. There are cases in other States holding otherwise, but in Wilson v. Mason, 158 Ill. 304, this Court refused to follow those

cases, denominating them as extreme and exceptional, and said, on page 311: "The true rule is, that the broker is entitled to his commissions if the purchaser presented by him and the vendor, his employer, enter into a valid, binding and enforceable contract. If after the making of such a contract, even though executory in form, the purchaser declines to complete the sale and the seller refuses to compel performance, the broker ought not to be deprived of his commissions. He has done all that he can do when he produces a party who is able, and in binding form offers, to purchase upon the proposed terms. An agreement by a real estate broker to procure a purchaser not only implies that the purchaser shall be one able to comply, but that the seller and the purchaser must be bound to each other in a valid contract. So where the agreement of the real estate broker is to make a sale, his commission is earned when a contract is entered into which is mutually obligatory upon the vendor and vendee, even though the vendee afterwards refuses to execute his part of the contract of sale or purchase.

Question 215: (1) A authorizes B, a real estate broker, to sell his property on certain specified terms. B procures C, but A refuses to deal with C. On what conditions, if any, can B compel A to pay him a commission?

(2) A authorizes B, a real estate broker, to sell his property on certain specified terms. B procures C, with whom A makes a contract of sale. C is, however, financially irresponsible and fails to perform his contract. Is B entitled to his commissions?

(3) A advises B, a broker, that he wants to sell his home and directs C to procure him a buyer. No terms are, however, proposed, as A wants to bargain with the prospective buyers. B procures C, who offers A a good price but A refuses to sell to him. C is ready, willing and able to buy at a good market price. Is B entitled to his commission?

(4) Suppose in the case last stated A had accepted C and made terms with him and entered into a contract. Would B be entitled to his commissions?

§ 214. (Agency, Sec. 30.) Agent's right to damages where principal wrongfully revokes.

Case 216. Doherty v. Shipper & Block, 250 Illinois Reports, 128.

Facts: E. Doherty was employed by defendant, for a period of eighteen weeks at $25.00 per week, payable weekly. At the end of the 9th week she was discharged without cause (as she claimed). At the end of the following week she brought suit before a Justice of the Peace for her week's wages and recovered a judgment for $25.00. This judgment was paid. She now sues at the end of the entire term for the eight additional weeks covered by her contract. Defendant contends that the suit before the justice bars her right to prosecute any subsequent suit.

Point Involved: Generally of the right of a wrongfully discharged employee to damages; specifically whether such employee can bring repeated suits for installments of salary that would have fallen due under the contract; whether on any theory the employee has more than one right of suit for his discharge.

MR. JUSTICE HAND: "The sole question raised in this Court and argued in the briefs filed by the respective parties is, was the first judgment rendered by the justice of peace a bar to this action?

"It is well settled that in case an employee is discharged without cause before the term of his employment has expired and he has been paid in full up to the time when he is discharged, he may treat the contract of hiring as continuing and bring an action for a breach of the contract of employment against his employer for discharging him, and if the suit is not commenced, or if commenced before but not tried, until his term of employment has expired, he may recover the contract price of his wages, less what he has earned or by reasonable diligence could have earned in other employment subsequent to his discharge. (Mount Hope

Cemetery Ass'n v. Weidenmann, 139 Ill. 67.) There is a class of cases which holds this remedy is not exclusive, but that, in addition to such remedy, the employee, where his wages by the terms of the contract, are payable in installments, may bring an action for each installment of wages as it falls due, subsequent to his wrongful discharge, and that the recovery on one installment is not a bar to the recovery on subsequently accruing installments. (Gandell v. Pontigny, 4 Camp. 375.) The recovery for each installment of wages allowed in the class of cases referred to, as it falls due, is based upon the theory of constructive service, and while the right of a recovery was thus permitted for a time in England and in the courts of some of the States in the Union, that theory of recovery has been abandoned in England (Archard v. Horner, 3 C. & P. 349; Smith v. Hayward, 7 Ald. & Ell. 544; Fewings v. Tisdal, 1 Exch. 295); and quite generally in this country. James v. Allen County, 44 Ohio St. 226; Howard v. Daly, 61 N. Y. 362; Richardson v. Eagle Machine Works, 78 Ind. 422; Olmstead v. Bach & Son, (Md.) 22 L. R. A. 74.

66* * 蓉 We have examined the numerous cases bearing upon the subject which have been cited in the briefs, and are of the opinion that upon principle the only action which logically can be maintained, upon the facts of this case, against the appellee, is an action for the breach of the contract of employment growing out of the wrongful discharge of the appellant, and that all damages resulting from such breach must be recovered in one action, and that after one recovery has been had that recovery is a bar to all future actions based upon the contract of employment or growing out of the relation of employer and employee by reason of the wrongful discharge of the appellant.

"We think the doctrine of constructive service, as applied to a case like this and where used as a basis of recovery, is illogical and unsound. The court has universally held that the proper measure of damages in a case like this is the contract price, less what the employee

earned or could have earned. That being so, if the discharged employee can find employment it is his duty to accept it. How can it then be said that while he is performing service for another person he is constructively engaged in the employ of the employer by whom he was discharged? We therefore conclude that the judgment recovered before the justice of the peace was a complete bar to the subsequent action."

Question 216: (1) What is the doctrine of constructive service? Does it prevail? Why?

On

(2) Assuming the plaintiff's discharge to have been wrongful how many law suits could she successfully maintain? what theories?

(3) If plaintiff had not been discharged could she bring successive suits for salary due as the same fell due?

§ 215. (Agency, Sec. 31.) Agent's right of compensation where he himself is guilty of breach of contract.

(See note under Case 178, supra.)

§ 216. (Agency, Sec. 32.) Agent's right of compensation when he abandons service without his own fault or that of principal.

(See note under Case 184, supra.)