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Rose v. Dolejs

OPINION FILED NOVEMBER 18, 1953.

DR. LOUIS A. ROSE ET AL., APPELLEES,

v.

ANDREW M. DOLEJS ET AL., APPELLANTS.



APPEAL from the Circuit Court of Du Page County; the Hon. CASSIUS POUST, Judge, presiding.

MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:

Appellees, Dr. Louis A. Rose and Margaret Gallery Rose, his wife, vendees of certain real estate located near Hinsdale in Du Page County, hereinafter referred to as plaintiffs, filed a bill for injunction in the circuit court of Du Page County, seeking to restrain appellants, Andrew M. Dolejs and Marie Dolejs, his wife, assignees of the rights and interests of the vendors of the real estate, and hereinafter referred to as defendants Dolejs, from prosecuting a certain forcible entry and detainer suit previously commenced by them in the county court of Du Page County. The bill prayed that the court issue a temporary injunction enjoining the prosecution of the forcible entry and detainer suit, begun by defendants Dolejs, that their contract of purchase be reformed in accordance with the agreement made between plaintiffs and the original vendors, Victor and Olga Schiller, his wife, hereinafter known as defendants Schiller, and requested a complete determination of the rights of the respective parties in and to said premises. The court granted plaintiffs' application for temporary injunction and referred the cause to the master in chancery to hear the evidence and make findings and recommendations. The master's findings and recommendations were in favor of plaintiffs. Before entry of the decree by the lower court plaintiffs further amended their complaint praying that the defendants Dolejs be compelled to convey the premises in question to them upon their deposit with the clerk of the court of the amount found to be due under the contract.

Subsequently, in January, 1952, the Schillers filed a counterclaim against the defendants Dolejs, averring that they had first assigned all their interest in said contract to one Koncil, whom Dolejs claimed to have obtained as a purchaser, and further averring that Koncil was not the real purchaser thereof, but that Dolejs was in fact the real purchaser and had wrongfully collected a real-estate commission from the counterclaimants. The Schillers offered to return the $10,000 paid by Dolejs to Koncil and by Koncil to the counterclaimants, and prayed a cancellation of the deed, a reconveyance and a return of the $500 commission.

The decree entered by the court perpetually enjoined the defendants Dolejs from prosecuting the forcible entry and detainer suit in the county court and declared void a purported forfeiture of the contract of purchase by the defendants Dolejs, reformed the contract to conform with modifications shown by plaintiffs, and ordered plaintiffs to deposit $11,320.24 with the clerk of the court within forty days, ordered the defendants Dolejs to convey the premises to plaintiffs within ten days after deposit of said sum, and that the master in chancery execute a deed for defendants Dolejs in the event of their failure to convey as directed, and providing the conveyance would not be subject to the prayer of the counterclaim of the defendants Schiller filed during the course of these proceedings. This action involves a demand for specific performance, and an action for specific performance of a contract to convey real estate involves a freehold. (Rawlins v. Bogusiewicz, 397 Ill. 548.) A freehold being involved, defendants Dolejs, alone, prosecute this appeal directly to this court, seeking to reverse the decree.

It is alleged that on May 10, 1948, plaintiffs, as purchasers, entered into a written contract with the defendants Schiller, as vendors, for the purchase of 40 acres of vacant land situated south of Hinsdale, Illinois. By the terms of this contract the purchase price of $15,000 was payable $5000 on June 1, 1948, $5000 on June 1, 1950, and $5000 on June 1, 1952, with interest at 5 percent payable annually on the unpaid balance. Plaintiffs paid $5000 shortly thereafter. Plaintiffs moved a house onto the land in which they lived until January 25, 1949, when the house burned. Plaintiffs allege they were hard pressed for a place to live with their family and therefore began remodeling a garage which was not destroyed by the fire. The executed copy of the contract burned in the fire and plaintiffs refused to make their interest payment on June 1, 1949, until defendants Schiller furnished them with a copy thereof, which they did on June 13, 1949.

Plaintiffs claim that in July of 1949 they informed the Schillers they wished to build a house on the property, but they could not if they would be required to make the contract payment in 1950. They further allege that Victor Schiller orally agreed that the 1950 payment of $5000 plus interest be extended to June 1, 1951, and the payment due in 1952 be accelerated to June 1, 1951, making the entire balance due in 1951.

Plaintiffs began the construction of a large dwelling in July of 1949. The master found that the house is now about 60 percent completed and has an appraised value of $16,000 to $17,000.

In May of 1950 defendant Schiller found himself in need of money and made demand on plaintiff Rose for the $5000 originally due in 1950. Said plaintiff claimed he then reminded Schiller of the extension agreement. Thereafter on August 2, 1950, defendants Schiller assigned their rights under the contract of purchase and sold the real estate to one Anton Koncil. Defendant Dolejs was the real-estate broker for the deal, collecting $500 for his services. Shortly thereafter Koncil assigned the contract to the Dolejs and gave them a joint tenancy warranty deed to the property. The Dolejs assert they paid the 1949, 1950, 1951 and 1952 taxes on the property long after those tax payments were due. They received no compensation, rent, interest, principal, or other thing of value since they purchased on August 15, 1950. It is on the foregoing transaction that the Schillers base their counterclaim to void the transaction and return the commission paid thereon.

On August 15, 1950, the defendants Dolejs served a 30-day notice on plaintiffs, demanding $5500. On September 16, 1950, defendants Dolejs served a forfeiture notice on plaintiffs. Plaintiffs allege that thereafter until the middle of December, 1950, plaintiffs and the Dolejs carried on negotiations to arrange a mortgage for plaintiffs. On December 29, 1950, defendants Dolejs started a forcible entry and detainer suit in the county court of Du Page County seeking possession of the premises.

Plaintiffs instituted this suit on January 16, 1951. On May 7, 1951, the date hearings before the master began, plaintiffs tendered to defendants Dolejs the sum of $11,143.26, comprising $10,000 principal due on the contract, $1000 representing interest at 5 percent on the unpaid principal due June 1, 1951, $136.43 being the 1949 taxes paid by defendants, and $6.83 interest for one year at 5 percent on taxes paid. Andrew Dolejs refused this tender.

The proofs show that on September 1, 1949, A.W. Kletschke, zoning officer for Du Page County, gave plaintiffs a red ticket warning them not to build the building they were commencing. No permit was ever issued to build a building on the premises.

The defendants Dolejs assert that they purchased the interest of the original contract vendors without any knowledge of the alleged oral extension. These defendants contend that even if such oral extension occurred, such a verbal contract is within the condemnation of the Statute of Frauds, providing that no action shall be brought to charge any defendant upon any agreement that is not to be performed within one year from the making thereof unless such promise or agreement, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person authorized by him to lawfully so sign, and especially where the charge is upon a contract for sale of lands.

It is not disputed that the original contract was signed on May 10, 1948. Dr. Rose testified that in June or July of 1949, soon after his family had moved into the converted garage on the property, he spoke to Victor Schiller about rebuilding the burned house. Dr. Rose asserted that the conversation took place in his driveway, while Victor Schiller sat in his car, and that he asked for an extension of the payment due on June 1, 1950. Unless they received an extension they would have been unable to rebuild. Rose proposed an extension to June 1, 1951, and an acceleration of the 1952 payment to the same date, thus allowing them to rebuild the house, obtain a mortgage and pay the entire amount due under the contract. He asserts that Schiller told him to go ahead and build, as that way he would get his money quicker. Mrs. Rose testified to the same facts and circumstances.

Victor Schiller, on cross-examination under section 60 of the Civil Practice Act, denied the oral extension claimed by the plaintiffs. He claimed he granted an extension from 1951 to 1952 which was the only extension he ever granted. Subsequently he admitted that on April 12, 1951, he stated in his deposition that he granted a year's extension from 1949 to 1950 and then to 1952. Upon being questioned by his own attorney he ...


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