No. 3--02--0109

_________________________________________________________________

							IN THE 

							APPELLATE COURT OF ILLINOIS

							THIRD DISTRICT

							A.D., 2003

JOANNE GRETENCORD,             )  Appeal from the Circuit Court

                               )  of the 13th Judicial Circuit, 

      Plaintiff-Appellee,      )  Grundy County, Illinois,

			                ) 

	v.				      )  No. 97--CH--25

	                          )   				            DANA CRYDER,                   )  Honorable

                               )  Robert C. Marsaglia,

     Defendant-Appellant.      )  Judge Presiding. 

________________________________________________________________

	JUSTICE LYTTON delivered the opinion of the court:

________________________________________________________________ 

	Plaintiff Joanne Gretencord, a real estate broker, sued

defendant Dana Cryder to recover a six percent brokerage 

commission on the sale of defendant's farm property.  After a

bench trial, the circuit court found in plaintiff's favor and

entered judgment against defendant in the amount of $41,900. 

Defendant appeals, arguing that the court's decision was contrary

to the manifest weight of the evidence.  We reduce the amount of

the judgment to $41,490 and affirm the trial court's decision in

all other respects.

	FACTS

	The real estate here at issue consisted of an undivided one-

half interest in a 320-acre tract of agricultural land in Kendall

County (Cryder Farm).  Defendant inherited his interest upon the

death of his father in 1993.  The other undivided one-half

interest was owned by defendant's aunt, Mary Moss.  Kirk Friestad was the tenant farmer of Cryder Farm at all times relevant to this action.

	In 1996, defendant needed money.  He tried to obtain a bank

loan, but he was told that his undivided one-half interest in the

farm could not be used as collateral.  The prospect of

defendant's selling his interest in the farm upset Moss. 

Consequently, Moss' attorneys instructed defendant not to contact

her about the matter.  Defendant honored his aunt's request and

asked his attorney, Timothy Malmquist, to do so as well.  Prior

to July 3, 1996, defendant told Friestad that he was considering

listing the property for sale.  Friestad said he wished he could

buy it, but he did not think he could afford such a large tract.

	On July 3, defendant entered into an agreement with

plaintiff granting her the exclusive right for three months to

sell his undivided one-half interest in the farm.  The agreement

specified the marketing price as $691,500 and named Richard Olson

as plaintiff's designated agent.  The agreement further provided:

		"Section 2.  Commission

		If during the term of this Agreement, *** the property

is sold or exchanged at any price and upon any terms

which Seller accepts, Seller shall pay Broker a

commission of 6% of the total purchase price of the sale or exchange.  Seller agrees that such a commission

shall be paid if the property is sold or exchanged by

Seller within a protection period of 3 months following the term of this agreement *** to anyone to whom Broker has made aware of the property and of whom Seller has

received notice from Broker within 30 days of the

expiration of the three month period."

and 

		"Section 4.  Sellers Duties

			Seller agrees to immediately refer to the Designated Seller's Agent all prospective purchasers or brokers

who contact Seller for any reason and to provide the

Designated Sellers [sic] Agent with their names and addresses."

	During the period that the agreement was in effect, Olson

obtained a written offer from William Eisenbrandt to purchase the

entire Cryder Farm for $1,384,000.  The offer was accepted by

defendant, but it was contingent on Moss' execution of the sales

contract.  Malmquist and Olson communicated the offer to Moss

through her attorneys.  Malmquist forwarded copies of the listing

agreement and Eisenbrandt's offer to Moss' attorneys.  Around

this time, Friestad approached Eisenbrandt.  Friestad said he

thought Eisenbrandt had purchased the farm, and he was concerned

about who would be farming it.  Eisenbrandt told Friestad that

the sale was not complete, and he could not comment on a farm

tenancy arrangement.  After Eisenbrandt related this visit to

Olson, Olson telephoned Malmquist to inquire about Friestad's

interest in purchasing the property.  Malmquist assured Olson

that Friestad was not an interested buyer.

	Olson subsequently visited with Friestad in person in August 1996.  Friestad told Olson that he wanted to purchase the farm,

but he could not afford to buy Dana's share of it.  Consequently,

Olson did not further pursue Friestad as a prospective purchaser. 

	In the meantime, Moss refused to sell, and Eisenbrandt

proposed purchasing defendant's share of the farm if Moss would

agree to a partition.  Moss' attorneys did not respond to Olson

and Malmquist regarding a partition before the listing agreement

expired at midnight, October 2.

	On October 3 and 4, defendant contacted Malmquist about

selling his interest in the farm to Friestad and filing a

partition suit against Moss.  Malmquist indicated that if Olson

had not shown the farm to Friestad, defendant had no liability

under the listing agreement.  On October 7, Friestad came to

Malmquist with a written offer to purchase defendant's undivided

one-half interest in the farm for $4,000 per surveyed acre.  On

that date, he tendered $10,000 in earnest money to defendant and

agreed to pay an additional $40,000 when the contract was signed. 

On October 8, 1996, the First Midwest Bank approved Friestad's

request for a $640,000 loan to purchase 160 acres of Cryder Farm. 

Negotiations between defendant and Friestad resulted in a

contract executed on October 11, 1996, for the sale of

defendant's undivided one-half interest for $652,500.  The

transaction was closed on February 3, 1997.

	At trial, defendant testified that, while the agreement was

in effect, he told Friestad he had a 90-day listing agreement. 

Friestad admitted that he was aware as early as July 1996 that defendant had listed his interest in the farm with plaintiff, but

he said he could not recall if he knew the date the listing

agreement expired.  He said he had had discussions with Moss

prior to October 7, 1996, and that she had agreed to partition

the farm if Friestad were to purchase defendant's share. 

Friestad admitted that his loan would not have been approved

without Moss' prior agreement to a partition.  Friestad thought

the partition documents were executed in March 1997, or some time

after the closing on defendant's interest.  Both defendant and

Malmquist admitted that, although they discussed defendant's

property with Friestad at various times during the period of the

listing agreement, they did not refer him to Olson as a

prospective purchaser or provide his name and address to Olson.

	Based on the evidence, the trial court found that Friestad

contacted defendant about the property either directly or through

his attorney after Olson visited with Friestad in person, and

that Friestad dealt directly with Moss behind defendant's back. 

The court found that Friestad carefully waited until he knew the

listing agreement had expired before he made his written offer to

purchase at a price practically equal to the listing price, less

six percent, thereby saving himself the cost of plaintiff's

commission.  Although the court found no purposeful dishonesty on

defendant's part, the court ruled that, under the circumstances,

defendant owed a duty to refer Friestad to Olson as a prospective

buyer pursuant to the listing agreement, and that defendant's

failure to do so constituted a breach of contract.  Accordingly, the court entered judgment for plaintiff.

	ISSUE AND ANALYSIS

	On appeal, defendant argues that the trial court erroneously

found that he owed a duty under the listing agreement to refer

Friestad to Olson.  He does not dispute that he discussed the

property with Friestad during the listing period after Olson met

with Friestad in August 1996.  Rather, he claims only that he did

not know that Friestad was a prospective purchaser until after

the listing agreement expired.  He argues that the $41,900

judgment is unfair; he should not be punished for Friestad's

conduct, especially since he did not receive any more money from

the sale than he would have received if the property had been

sold to Eisenbrandt.

	A circuit court's verdict will not be disturbed on review

unless it was against the manifest weight of the evidence.  Louis v. Lexington Development Corp., 253 Ill. App. 3d 73, 625 N.E.2d 289 (1993).  A verdict is against the manifest weight of the

evidence when an opposite conclusion is clearly evident and where

the court's finding of fact is arbitrary and not based on the

evidence.  Louis, 253 Ill. App. 3d 73, 625 N.E.2d 289.  Generally, this court will defer to the court's findings of fact

where several inferences are reasonable from conflicting

testimony and where the facts must be determined based on an

assessment of the witnesses' credibility.  Louis, 253 Ill. App. 3d 73, 625 N.E.2d 289; Family Tailored Homes, Inc. v. Manfield, 233 Ill. App. 3d 477, 599 N.E.2d 198 (1992).  

	Here, the question at trial was not whether defendant knew

or believed that Friestad was a prospective purchaser, but

whether he was, in fact, a prospective purchaser who contacted

defendant about the property during the term of the listing

agreement.  "Prospective" means "[i]n the future; looking

forward; contemplating the future."  Black's Law Dictionary 1222

(6th ed. 1990).  Undisputed facts and reasonable inferences from

the evidence at trial established that Friestad, notwithstanding

his denials of ability to pay, was a "prospective" purchaser

i.e., contemplating the future purchase of defendant's property-- who contacted defendant throughout the term of the listing

agreement.  Defendant informed Friestad that he intended to sell

his interest in the farm even before he entered into the listing

agreement.  At that point, Friestad said he wanted to buy the

property but could not afford it.  Later, in another

conversation, defendant informed Friestad that he had a 90-day

listing agreement with plaintiff.  This information was not a

matter of general publication.  It would be of interest, however,

to a prospective purchaser who was willing to wait in the wings

to make a deal for six percent less than the listed price.  See

Podolsky & Associates, L.P. v. Discipio, 297 Ill. App. 3d 1014, 697 N.E.2d 840 (1998).

	Defendant's duty to refer was not dependent on defendant's

belief that Friestad could afford to pay for the property and was

not extinguished by Olson's failure to show Friestad the land he

had been farming for several years.  See Family Tailored Homes, 233 Ill. App. 3d 477, 599 N.E.2d 198 (real estate agent's failure

to show property to ultimate buyer who lived 50 yards away and

was known to seller did not absolve seller of liability under

exclusive listing agreement, where offer to purchase was made

within two days of expiration of listing agreement).  Instead of

relying on Friestad's asserted inability to pay the listed price,

defendant had only to refer Friestad to Olson and to provide

Olson with Friestad's name and address pursuant to section 4 of

the listing agreement.  Defendant did neither.  By not complying

with his contractual duty, defendant assumed the risk that

Friestad would deal with Moss behind his back, arrange his

finances and make an offer defendant would not refuse immediately

after the listing agreement expired.

	Notwithstanding defendant's lack of bad faith, his failure

to comply with his duty to refer exposed him to liability under

the contract.  Cf. Podolsky, 297 Ill. App. 3d 1014, 697 N.E.2d 840 (broker not entitled to commission where trial court believed

seller's testimony that he told prospective purchaser to deal

with broker during term of listing agreement and sold property to

same entity more than six months after listing agreement

expired).  Accordingly, the trial court did not err in granting

judgment for plaintiff.

	Last, we note that the judgment awarded is $410 in excess of

the amount prayed for in plaintiff's complaint.  Plaintiff sued

for $41,490, which is six percent of the listed price of

$691,500.  No evidence was admitted at trial to support an award greater than $41,490, and it appears that the amount awarded

($41,900 plus costs) was a scrivener's error.  Therefore,

pursuant to our powers under Supreme Court Rule 366(a) (155 Ill.

2d R. 366(a)), we modify the award by reducing it to $41,490 plus

costs.  See Carlson v. City Construction Co., 239 Ill. App. 3d 211, 606 N.E.2d 400 (1992).

	CONCLUSION

	The judgment of the circuit court of Grundy County is

affirmed as modified.

	Affirmed as modified.

	McDADE, P.J., and SLATER, J., concur.