The opinion
Mr. JUSTICE HAYES, specially concurring.
I concur in all respects with the opinion of the court. I file this concurring opinion merely to develop a bit further the matter of the alleged duty owed to the seller by Dunkirk Realty as the cooperating broker to disclose to the seller the relationship between the buyer and itself (namely, that the buyer was the president and owner of Dunkirk Realty, which, as the cooperating broker, would, by reason of an agreement between Dunldrk and Barrington Realty, share in the commission to be paid by the seller to Barrington Realty as the listing broker).
It is true that a real estate broker with whom a seller lists his property for sale creates, by his acceptance of the listing, a principal-agent relationship with the seller whereby the broker-agent becomes a fiduciary to the seller-principal. By reason of this fiduciary relationship, the listing broker has the duty to disclose to the seller the identity of the buyer (Annot., 2 A.L.R.3d 1119 , 1128 (1965)), as well as any significant relationship between the buyer and the listing broker. (Edna Mae Development Co. v. Chicago Title & Trust Co. (1966), 79 Ill. App. 2d 251 , 223 N.E.2d 285 (the buyer was the father of the listing broker).) Moreover, it is improper for the hsting broker to acquire, directly or indirectly, any interest in the fisted property without the knowledge and consent of the seller-principal. Olson v. Eulette (1947), 332 Ill. App. 178 , 74 N.E.2d 609 .
We are aware that a real estate broker who cooperates with the listing broker in the sale of the fisted property is bound by the terms of the listing agreement between the listing broker and the seller (Van C. Argiris Co. v. Caine Steel Co. (1974), 20 Ill. App. 3d 315 , 314 N.E.2d 361 ), and that a fiduciary relationship may or may not exist between the fisting broker and a cooperating broker, depending upon the nature of the agreement between them. (See Wyman v. Snyder (1884), 112 Ill. 99 .) But we have not been cited to any Illinois case, nor have I been able to find an Illinois case, in which a cooperating broker has been held to be, in respect of the seller, a sub-agent or co-agent of the fisting broker so as to create, as between the seller and the cooperating broker, a relationship of principal-agent and thereby to make the cooperating broker a fiduciary to the seller. In my opinion, there is nothing in the function of a cooperating broker as such which warrants the implication of any direct relationship between the co-operating broker and the seller, and there is no implied authority from the seller to the fisting broker to create any relationship of principal-agent between the seller and any cooperating broker; in fact, I see no reason why the cooperating broker may not be the agent of the buyer.
In the instant case, the fisting broker was Barrington Realty; the cooperating broker was Dunkirk Realty, of which entity plaintiff-buyer was the president and owner. Under the circumstances, it seems clear to me that the cooperating broker was the agent of the buyer. As the opinion of the court points out, we find no evidence of any principal-agent relationship between the cooperating broker and the seller and, in the absence of such evidence, we cannot find any fiduciary duty owed by flie cooperating broker to the seller to disclose the relationship between the cooperating broker and the buyer. On the contrary, as the opinion of the court also points out, there is some evidence in the instant real estate purchase contract between the seller and the buyer that the seller wished to sustain no relationship whatever with any broker other than the listing broker. A buyer’s warranty in that contract disclosed to the seller tire participation of Dunkirk Realty. With that knowledge, the seller cancelled out the following printed sentence in the contract: “Seller warrants no other broker is entitled to commission.”.
Finally, we have noted that the seller sustained no pecuniary damage of any land, because he received the full price for which he had listed the property for sale, and he paid simply the commission specified in the terms of his listing agreement with Barrington Realty.
I conclude that there was no evidence of any fiduciary relationship between Dunkirk Realty and the seller, and no duty owed to the seller by either the buyer or Dunkirk Realty to disclose to the seller the relationship between themselves.