APPEAL from the Superior Court of Cook County; the Hon. JOHN
J. LUPE, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 23, 1958.
This is a direct appeal from a decree of the superior court of Cook County directing specific performance of an alleged agreement by a person, since deceased, to leave certain real and personal property to the plaintiff. The title to a freehold being involved, the cause comes to this court on appeal.
The record indicates that the plaintiff, Catherine Pocius, and Emil Ber and his wife, Ollie Ber, both now deceased, had known each other since the plaintiff was a child. In June, 1951, the Bers purchased a two story building at 6024 S. Sacramento Avenue in Chicago, and moved into it. Mrs. Pocius lived just two blocks away. In 1952, Ollie Ber became ill and was unable to care for her household duties. The plaintiff came in and helped clean and wash, and took Mrs. Ber for rides in her car. She washed the clothes, changed the linens, cleaned the roomers' quarters, and the living quarters. Ollie died in May, 1953, and thereafter the plaintiff continued to help Mr. Ber and to cook for him and the roomers.
Ber mentioned to several people that he didn't know what he would do without the plaintiff's help. Then in the fall of 1954 he became ill. In early November, 1954, he contacted Marvin D. Patterson, a real-estate and insurance broker, and told him that he had been unable to contact his lawyer and he wanted Patterson to come over to his home with reference to some real estate. Patterson was unable to go to the Ber home until Sunday, November 7. When he arrived the plaintiff and a roomer, John Jakstavich, were in the kitchen. He and Ber went into the living room where Ber said he wished to convey his property or see that it was presented to certain people as he wished. He said he wanted to give the plaintiff, Catherine Pocius, the building at 6024 S. Sacramento with all the furnishings plus three cemetery lots, as she had been very good to his wife and had helped him with housework and various things. Patterson made a warranty deed in blank, bill of sale, a quitclaim deed for a tavern which was to go to some other people, and a power of attorney. Ber had Patterson read the power of attorney directing and empowering Patterson to convey the Sacramento Avenue building and cemetery lots to Catherine Pocius and then signed it. He called in Mrs. Pocius and asked if she understood what he was doing, and had her sign the document next to his signature. He gave Patterson $20 and told him to record the deeds. Patterson, feeling no need for urgency, left the papers in a folder on his office desk and left next day for Kalamazoo, Michigan. He returned on November 23. Emil Ber, who had entered the hospital, died on November 24. The deeds and bill of sale were never executed.
The evidence shows that Mrs. Pocius entered into possession of the property sometime after November 7, 1954, when Ber went to the hospital. The record does not indicate the exact date, but John Jakstavich, a roomer in the Ber home, testified she took over the flat when he went to the hospital, and that she moved in after he died.
On January 21, 1955, Charles J. Fleck, as Public Administrator, was appointed administrator of the estate of Emil Ber. On May 2, 1955, plaintiff received notice that the administrator was presenting a petition to the probate court for leave to sell personal property, which property Emil Ber had arranged to give to plaintiff.
Plaintiff then filed her suit in the superior court of Cook County, against Fleck and the unknown heirs. She prayed that the court decree a valid and subsisting contract between the Bers and herself, that the contract be performed clear of all claims by defendants, and that an injunction issue restraining the administrator from interfering with any of the property. The administrator filed a motion to strike, which was denied. Upon answer by the administrator and a hearing, a finding was made in favor of plaintiff. Before decree was entered the defendants, the brothers of Emil Ber, moved to reopen the cause, and that they be allowed to answer and defend, which motion was allowed. Defendants adopted the answer of the administrator except that they denied that plaintiff ever took over possession of the property at 6024 S. Sacramento Avenue. Upon hearing, a decree was entered finding a valid agreement between plaintiff and Emil Ber, that Emil Ber did give plaintiff the real and personal property, household goods and effects located at 6024 S. Sacramento Avenue, the three cemetery lots, and that plaintiff was entitled to specific performance.
Defendants appeal directly to this court asserting that (1) plaintiff failed to prove a contract, (2) that specific performance should be denied, and (3) no gift was made to plaintiff by Emil Ber.
Plaintiff first appears to ask for specific performance of an oral contract to convey the property, or possibly of a written memorandum constituting a contract. She thereafter appears to base her claim upon an executed gift of all of the disputed property from Emil Ber to her.
To entitle a plaintiff to specific performance of an oral contract or verbal promise, the promise or contract must be clear, explicit and convincing. It may be based upon services, but if the value of services may be estimated in money for which a recovery might be had, such performance will not take the contract out of the Statute of Frauds, except in case the Statute of Limitations bars recovery, or where services cannot be adequately compensated. Specific performance is not a matter of right, but rests in the sound discretion of the court, to be determined from all of the facts and circumstances. Only on the principle that it is unjust and inequitable to permit a contract to remain unexecuted will a court of equity grant relief, and where the promisee shows no substantial change for the worse in his position, in consequence of the agreement, relief will be denied. (Linder v. Potier, 409 Ill. 407.) Oral contracts to devise real estate or personal property are enforced in equity in certain cases to furnish more complete and fuller justice than afforded by law. The remedy is allowed where the contract has been fully performed by one party, but performance must be such that if the remedy is withheld it would be a fraud upon the promisee if not carried out. The services of the promisee must be referable to the contract alone and the promisee must have changed position for the worse. (Tess v. Radley, 412 Ill. 405.) If performance and possession are relied upon to establish the contract and remove it from the application of the Statute of Frauds, the proof must be clear and convincing that the promisee went into possession under the contract and made valuable improvements upon the property with his own means and upon the faith of the promise and with the knowledge of the promisor. Stephens v. Collison, 313 Ill. 365.
The proof in this case fails to establish a clear, explicit and convincing oral contract. Nothing indicates that plaintiff changed her position for the worse, or even changed her position in reliance upon the contract. Plaintiff's services were not the consideration for the contract, as they are not referable to the contract, but were performed before any promise is alleged. It is disputed whether plaintiff actually went into possession. Certainly she did not make valuable improvements thereon. Clearly no oral contract is proved upon which specific performance may be had. The denial of such remedy works no fraud or inequity upon the plaintiff.
Plaintiff raises the possibility that the power of attorney setting out the directions to Patterson and signed by Emil Ber and the plaintiff, constitutes a written contract upon which specific performance may be based. To decree specific performance of a written contract for the conveyance of real estate the contract must be definite and certain in its terms and conditions, contain the names of the vendor and vendee, a description of the property sufficient to identify it, the price, the terms and conditions of sale, together with the signatures of the parties to be charged. (Hanlon v. Hayes, 404 Ill. 362.) The said power of attorney contains ...