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Milani v. Proesel





APPEAL from the Superior Court of Cook County; the Hon. JOHN LUPE, Judge, presiding.


Rehearing denied January 22, 1959.

This is a direct appeal by defendant Marion Proesel from a decree of the superior court of Cook County approving the master's findings and ordering said defendant to specifically perform a contract for the sale of certain land owned by her to plaintiffs Dean J. Milani and First National Bank of Lake Forest.

Although the complaint originally sought only recovery of some $6,500 earnest money deposited by plaintiff Milani with defendant Ernest Dettmar as broker, the amended complaint requests specific enforcement of an alleged contract against defendant Proesel, or, alternatively, damages for its breach. Therefore, the essential inquiry on this appeal is whether the facts and circumstances establish the existence of a valid contract which should be specifically performed.

From the record it appears that on August 6, 1954, Lawrence Proesel, father of defendant Marion Proesel, gave Dettmar, as broker, a nonexclusive listing of certain real estate in which he owned an undivided 2/3 interest, and his brother-in-law owned the remaining third. In the listing Proesel promised Dettmar a commission for his services in securing a purchaser. The property, a two-block area of vacant land in the village of Lincolnwood, was described as running east from the southeast corner of Crawford and Pratt avenues to East Prairie Avenue ("50 x 165 Not In"), and was priced at $200 per front foot commercially zoned and $100 per front foot ranch-house frontage, which amounted to between $80,000 and $85,000. Lawrence Proesel also delivered a handwritten diagram of the parcel to the broker, on which a 50-foot portion was encircled by someone with the word "out."

Dettmar erected a metal sign on the premises advertising it for sale. In the latter part of 1954, plaintiff Milani contacted Dettmar, and on January 4, 1955, at Milani's direction, Dettmar filled in a form real-estate contract to be submitted to Lawrence Proesel, in which the designated purchaser was "First National Bank of Lake Forest, as Trustee," and the seller was "Lawrence Proesel et al." The document was not signed by anyone, but bore only the typed name of "First National Bank of Lake Forest" in the space provided for the signature of the parties, and the initials of Dean J. Milani near the line on which the Bank's name was typed. Milani's initials also appear in two other places where there are pen-and-ink changes on the form contract.

In connection with the signing, Milani testified that he has never asked the bank to sign; nor did he sign his initials as an officer of the bank; nor is there any evidence of any action by the bank authorizing Milani to bind it, other than Milani's statement that he had signed the bank's name in connection with other trusts. At the time this form was filled in, however, Milani did not know in which trust he wanted the property to be placed, and told Dettmar that a trust would be assigned as the deal progressed.

The form recited an earnest money deposit of $2,000 and provided for payment of an additional $28,000 within 90 days for the east half of the property. It then gave the purchaser an option to buy the west half for $35,000, of which $5,000 had to be paid within 90 days, and the balance was payable within one year. It further provided that upon acceptance by the sellers the earnest money was to be increased by the payment of $4,500 additional before March 15, 1955, with payments to be altered accordingly.

Dettmar submitted this document to Lawrence Proesel, and in his presence made notations on the back of the document as to the amounts involved. They calculated that, after payment of delinquent taxes, special assessments and costs of sale, the deal would net about $20,000 out of the total of $65,000. Dettmar testified that he did not ask Lawrence Proesel to sign the document, and that he told Milani that Lawrence Proesel never signed contracts, but that his word was his bond.

On January 10, 1955, six days after the date indicated on the document, Lawrence Proesel died. Inasmuch as plaintiff Milani seeks specific performance on the theory that Lawrence Proesel's daughter, as executrix, adopted this form contract by her letters and conduct, and became bound thereby, it is incumbent upon this court to review in detail the chronology of the ensuing events.

Upon learning of her father's death, defendant Marion Proesel returned immediately to Chicago from Washington, D.C., where she worked in the U.S. Department of Health, Education and Welfare. On January 12, 1955, she met Dettmar, the broker, for the first time, when he appeared at the family home. At that time he merely advised her of the prospect of a sale of her father's property for $65,000, and she explained that she was interested in disposing of it since her father left no personal estate for the payment of necessary expenses. When they met again some 10 or 12 days later in the family home, defendant Marion Proesel told Dettmar that she was interested in selling the property for $65,000, but that her father wanted her sister Catherine to have some 50 feet of that property. Dettmar named Milani as a prospective purchaser, and told defendant Proesel some facts about him, including his owning property in Lake Forest. It was agreed that Dettmar should be paid a commission on any sale, but the exact amount was not mentioned.

Defendant Proesel returned to Washington the latter part of January, 1955, and the following month wrote Dettmar the first of three material letters. She advised him that the sale of the property had been entrusted to her by her aunt and uncle, that she was very much interested in liquidating the East Prairie property, and she further stated: "If you can get everything lined up I shall come to Chicago at the earliest possible date," and also, "I'd like to conclude this deal to our mutual satisfaction in the least possible time."

On April 4, 1955, while in the Chicago area again, defendant Proesel obtained a quitclaim deed from the Hartmans, who owned the remaining 1/3 undivided interest, which she held in trust for the purpose of a sale. Dettmar drove her to the law offices of Herman & Pollack and introduced her to Herman, whom she engaged to represent her in any sale of the property, as well as in probating her father's estate. According to the testimony of Dettmar, Herman stated that he would get things in shape so that defendant Proesel would have the right to sell the property. She then made proof of heirship at the probate court and returned to Washington the following day.

Under the date of April 15, 1955, Dettmar wrote Milani that the time for closing had been extended to June 15, 1955, and in the postscript acknowledged receipt of $4,500 additional earnest money. Dettmar was later criticized by Herman for writing that letter. He was told that he had no right to accept additional earnest money, and that he would have to get a cash deal, for the property could not be sold on the installment plan because of the outstanding taxes, special assessments, and bequests to the heirs. ...

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