APPEAL from the Superior Court of Cook County; the Hon. WALKER
BUTLER, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 30, 1960.
Plaintiff, Margaret K. Moehling, brought this suit in the superior court of Cook County against the W.E. O'Neil Construction Company, defendant, seeking specific performance of an alleged oral agreement relating to the conveyance of ten acres of land. The cause was referred to a master, who found the issues for plaintiff, and this direct appeal is prosecuted by defendant from an ensuing decree for specific performance. A freehold is involved to give us jurisdiction. Lang v. Parks, 19 Ill.2d 223.
Late in January, 1957, defendant, a general construction company, needed acreage for road-fill purposes in connection with the performance of Illinois toll road contracts. It engaged the Ben F. Eidamiller Company, real-estate brokers, to help acquire land for such purpose, and plaintiff, a licensed saleswoman for the Eidamiller firm, was assigned to this duty. She exhibited to Anthony DeSimon, engineer and construction superintendent for defendant, various plats and listings, including two properties known as the Conrad Wille and Arnold Wille farms, the former consisting of about 62 acres and the latter of about 39 acres. According to plaintiff, DeSimon advised her that the western portion of the Arnold Wille farm was unsuitable because bordering roadways would create traffic problems, because excavations for fill could not be made within 300 feet of the roadways, and because that part of the land was low. After it was ascertained that Arnold Wille was interested only in selling the entire farm, DeSimon was advised of such fact on February 10, 1957, and it is plaintiff's theory that, on such date, it was orally agreed between them that she would obtain an option to purchase the entire farm, she to acquire the west ten acres for herself and defendant the remainder of the property, each contributing proportionately to the purchase price. Further, it is her theory that the oral agreement with DeSimon was orally ratified the following day by William E. O'Neil, treasurer of defendant, and that it was later evidenced by memoranda sufficient to satisfy the Statute of Frauds. For the defendant, it is contended that the oral agreement was not proved by the clear and convincing evidence required, or that, if proved, the agreement is unenforceable under the Statute of Frauds, and that plaintiff is barred from recovery because she breached the fiduciary relationship existing between the parties.
Detailing the conversation of February 10, 1957, when the oral agreement was purportedly entered into, plaintiff testified she told DeSimon that she and her husband had talked over the proposition and felt they would be interested in the western portion of the Arnold Willie farm, and that when she asked if "we would have a deal if we took the west ten acres," DeSimon replied in the affirmative, stating: "I feel my people would go along with that." DeSimon, who pointed out that he did not have final authority for land purchases by his company, denied having such a conversation, and testified he never knew but what his company was to get the entire farm.
Concerning the alleged ratification by William E. O'Neil on the following day, plaintiff testified that DeSimon said to O'Neil in her presence: "Mrs. Moehling is interested in the west ten acres and what if she disposes of that part?" and that O'Neil replied: "Fine, that's swell." The latter, however, denied having made any agreement with plaintiff, or that he had any conversation with her relative to her purchase of the west ten acres.
On February 15, 1957, plaintiff was given two checks by defendant, each in the amount of $2,500 and payable to Eidamiller Company, to be used, respectively, as deposits toward the purchase of both the Arnold and Conrad Wille farms. With respect to the latter farm, the sale of which is not in issue, the record shows that defendant ultimately purchased it for $2,500 an acre at a meeting arranged by plaintiff, and that defendant likewise paid to Eidamiller a brokerage fee of 5 per cent, or $125 an acre, a portion of which was passed on to plaintiff as her sales commission.
A completely different course was pursued with respect to the Arnold Wille farm. As to it, plaintiff deposited the $2,500 check with her employer and drew a firm check in the same amount, which was used, on February 18, 1957, to obtain an option in her own name for the purchase of the farm. Although it was the testimony of defendant's witnesses that the option was taken in plaintiff's name without defendant's knowledge or authority, plaintiff's version was that it was done upon defendant's instructions as a device to conceal the true identity of the purchaser, thus keeping the price down and hiding from the seller the fact that his land was going to be excavated and used for road fill. Plaintiff testified she told Arnold Wille there were going to be two purchasers of his land. Wille, however, denied he had been told this and stated plaintiff had declined to tell him who the purchaser was going to be.
The option in question was originally prepared by Harry Talcott, an attorney for Eidamiller, but was corrected and redrafted by Peter Struck, Wille's attorney, at a meeting between Struck and the plaintiff. At no time, however, was the option agreement shown to defendant before it was submitted to Wille and signed. Indeed, as shall be later pointed out, it was not until March 14, 1957, over a month later, that defendant was shown the option agreement. By its terms, plaintiff or her assigns were given an option to purchase about 39 acres, (the exact acreage to be determined by a survey furnished by plaintiff,) at a price of $3,500 an acre, on or before May 17, 1957. If the option was not exercised by such date the deposit of $2,500 was to be forfeited. In addition, it provided for payment of the purchase price in three yearly installments, beginning May 17, 1957, and concluding May 17, 1959, and, inconsistent with defendant's needs and purposes, prohibited the removal of soil from the premises until the purchase price of approximately $136,000 had been paid in full. Still another provision bound Wille to pay plaintiff a broker's commission of 5 per cent on the total sale price. In retrospect, it appears that plaintiff was acting for both the buyer and the seller, and herself as well.
Plaintiff testified she told DeSimon about the option and discussed its terms with him on the following day, February 19, 1957, but he denied that this was so, or that he even knew at that time that an option had been obtained. None of defendant's officers or agents were shown the option until March 14, 1957, when plaintiff delivered a copy to John Breen, defendant's attorney, after what he described as repeated requests. In explaining this circumstance, plaintiff testified simply that none of defendant's representatives had ever asked to see the option.
The next event of consequence after the execution of the Wille option occurred on February 28, 1957, when plaintiff mentioned to Robert O. Wall, defendant's project manager, that part of the land was to become hers and was told by him it looked as if defendant would need the entire farm. She testified this news caused her to fear there might be some dispute as to the ten acres, so she went to Talcott on March 1, 1957, who drafted a memorandum for her as follows:
"To: Margaret K. Moehling
With reference to the option given to you by Arnold Wille and Frances Wille, his wife, and Ida Wille, a widow, dated February 18, 1957, wherein you have the privilege and option of purchasing on or before May 17, 1957, the following described premises, situated in the ...