APPEAL from the Superior Court of Cook County; the Hon. JOHN
F. HAAS, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 18, 1954.
In a proceeding for specific performance of a real-estate contract to compel defendant Frank Bolda to convey certain real property to the plaintiffs, Frank and Nellie Kukulski, the superior court of Cook County decreed that the complaint be dismissed for want of equity, and plaintiffs have appealed therefrom directly to this court on the ground that a freehold is involved.
The issue herein is whether the evidence establishes that at the time of the execution of the contract the defendant, Frank Bolda, was intoxicated or otherwise mentally ill so that he did not comprehend the nature of the transaction, and thereby warrants a denial of specific performance. In determining whether the superior court erred in dismissing the complaint, it is incumbent upon this court to analyze the evidence.
Plaintiffs filed their complaint for specific performance alleging the terms of a written contract entered on February 28, 1952, between plaintiffs as purchasers and Frank Bolda as the seller of certain real property, pursuant to which contract plaintiffs paid $300 earnest money. They offered to pay the balance on delivery of the deed, but defendant Bolda refused to convey the property. Plaintiffs thereupon instituted suit for specific performance, and, although Bolda entered his appearance pro se, he did not appear at the original hearing, and a decree pro confesso in favor of plaintiffs was entered at an ex parte hearing. Within 30 days thereof an order was entered granting defendant Bolda leave to file his petition to vacate the order on the ground that he was too intoxicated or mentally ill to comprehend the nature of the transaction, and granting Lillian Opila leave to file her intervening petition. The cause was referred to a master who heard testimony thereon.
From the evidence adduced, it appears that the property in controversy, owned by defendant Frank Bolda, a bachelor, is a 6-room bungalow, in neglect of maintenance, consisting of 4 rooms on the first floor occupied by defendant and his sister, Lillian Opila, and her four children, and two rooms on the second floor and a basement apartment, both of which were occupied by tenants. The consideration for that property under the contract was $2500 in addition to the assumption of a mortgage of $1934 and some real-estate taxes for 1951 and 1952, constituting a total sum of $4500. The appraiser testifying on behalf of defendant valued the property at between seven and eight thousand dollars, and the appraiser testifying on behalf of plaintiffs valued the property at $5800.
The testimony with reference to the condition of defendant Bolda at the time the contract was executed is highly controverted. Two days before the contract was allegedly signed, defendant Bolda was examined by a psychiatrist of the municipal court as a result of his numerous arrests for beating up his sister while he was drunk. The psychiatrist at that time made a diagnosis of "chronic alcoholism and mental deterioration which is in the classification of psychosis for mental illness." He testified that at that date Bolda had a poor contact with reality, a disturbance of memory, and a lack of exercise of good judgment, and that there would be some amnesia present, even though Bolda could have lucid moments. He recommended at that time that Bolda be certified to a State psychiatric hospital.
There was considerable inconsistency in plaintiffs' testimony as to whether or not Bolda traded at their tavern, and as to his sobriety. Plaintiff Frank Kukulski admitted that he knew Bolda for over five years, and stated first that Bolda never came to his tavern, then not very often, and finally that Bolda came there once a week. He admitted seeing Bolda drunk once in a while, then denied seeing him intoxicated before February 28, 1952. "As to whether he ever got intoxicated at my place, no. As to whether I saw him drinking, at any time, he wasn't sober. I don't think he was sober, I don't know." His wife testified that Bolda did not drink much in their tavern, sometimes once or twice a week, but that any time he came in, he came in drunk, but not on the 28th. Frank Kukulski stated further that Bolda did not drink in his tavern between February 22 and 28; that Bolda came into his tavern on the night of the 25th or the 26th crying and complaining about his sister and said, "I want to sell the property." On the following day Bolda came there again and started crying about bills on the property, and showed plaintiff a bruise on his head. Plaintiff Frank Kukulski asked Bolda how much he owed, and he said about $1500, and plaintiff offered him $3000 for the property and would take care of all the bills. At about 5:00 P.M. the following day, February 28, according to plaintiffs' testimony, Frank Kukulski and Bolda went together to the office of plaintiffs' lawyer, Abdon Pallasch. While waiting for the lawyer Bolda was seen by Pallasch's law clerk, who testified that Bolda appeared sober. During the conversation with Pallasch, Bolda showed them various documents, including an insurance policy, a deed and a mortgage book. Pallasch typed the contract, and after plaintiff Nellie Kukulski arrived, the parties signed the contract, and plaintiffs paid Bolda $300 earnest money. The lawyer testified that Bolda appeared sober at that time.
Defendant Bolda, however, did not recall going to Pallasch's office or signing the contract. He explained that on February 22 he drew some money and went to Kukulski's tavern to drink. He knew Kukulski about 6 years and drank in his tavern on week ends. Bolda boasted that he had been drinking whisky and beer for about 30 years and would get drunk every Friday, Saturday and Sunday, lasting for a week and a half sometimes. He did not think that he worked the week following February 22; thought he slept on the table in the tavern or on the porch. His work record at the Canning Pecora Co. showed that he worked on February 21 and 22 at a rate of $1.75 per hour, earning $19.70 for the week ending February 23; and that he worked on February 25, 27 and 28, but not on February 26.
Defendant Bolda's sister, Lillian Opila, testified that Bolda did not come home from February 22 until the day she saw him in court, on February 29. When he came home finally to change his clothes he "stunk like a brewery." She further stated that her brother had been drinking intoxicating liquors for about the past 20 years; that he was drunk practically every Friday and Saturday, and would beat her and destroy things, so that she had to have him arrested frequently. The judge of the police court had told her to have her brother put away.
It further appears from the evidence that on March 4 the plaintiffs, their lawyer and Bolda met at the Liberty Loan Association, which held the mortgage on the controverted property, and the plaintiffs signed the mortgage. An official of the association testified that Bolda was not intoxicated, although on cross-examination he admitted that Bolda always looked drunk to him. The parties were allegedly to meet at the association on March 17, but Bolda did not appear. Pallasch sent him a registered letter informing him to be ready to close the deal on March 21 at the association, but when the parties met there Bolda refused to proceed with the deal.
On the basis of the foregoing evidence, the master found that plaintiffs were entitled to the relief sought, and recommended that the defendant be decreed to execute a deed to the Kukulskis under the terms of the contract. The court, however, did not follow that recommendation, and held that as a result of mental deterioration defendant Bolda did not possess the mentality sufficient to enable him to comprehend the consequences to himself, or to his sister and her children, of his signing the contract, and therefore dismissed the complaint for want of equity.
Pending this appeal there was made part of this record an order of the probate court, entered May 5, 1953. That order recited that upon a hearing on February 26, 1953, before Judge Waugh, on the petition of Lillian Opila for the appointment of a conservator for Frank Bolda, the latter was referred to Dr. John Madden, a psychatrist, who, after examination, reported that he regarded Bolda as a chronically alcoholic individual, not competent to properly care for himself and his affairs, and therefore it was decreed that Edward Helenck be appointed conservator of the estate of Bolda, and be substituted as a party defendant in the litigation between Bolda and the Kukulskis.
In determining the propriety of the decree of the superior court herein, denying plaintiffs specific performance of the contract with defendant, it is established that the remedy is not a matter of right, even where the terms of the contract are clear and unambiguous, but in each instance the remedy rests in the sound discretion of the court to be determined from all the facts and circumstances. (Edwards v. Brown, 308 Ill. 350.) A court of equity will not enforce specific performance of a contract where it would be unconscionable to do so, or where its enforcement would be oppressive or inequitable, (Heyne v. Scheffauer, 321 Ill. 266; Raginsky v. Lawler, 313 Ill. 441; Hetfield v. Willey, 105 Ill. 286,) as where fraud, unfairness or advantage has been taken to procure the contract. (Stephens v. Clark, 305 Ill. 408.) Nor is it necessary that the agreement ...