Appeal from the Circuit Court of Pulaski County; the Hon. JACK
C. MORRIS, Judge, presiding. Decree affirmed.
Defendant appeals, and plaintiffs cross appeal, from the decree of the Circuit Court of Pulaski County, denying relief to plaintiffs on their complaint, and to defendant on his cross complaint.
In their complaint plaintiffs allege that prior to August 21, 1962, they owned a parcel of land, during 1961 and 1962 plaintiffs had employed defendant to sell the land, defendant, in the course of his employment as plaintiffs' agent received bona fide offers for the parcel in excess of $130 per acre, which offers he failed to communicate to plaintiffs, plaintiffs were led to believe the premises were not reasonably worth more than $130 per acre, and were induced to sell and convey the land to defendant for $57,850, subsequently defendant boasted he would sell the real estate at a profit of $50,000, plaintiffs would not have agreed to sell at the price paid had defendant disclosed to plaintiffs the value of the land and the offers received therefor, that on December 19, 1962, defendant sold the land for $251.75 per acre, being in the aggregate $112,000, subsequently the contract of sale was amended to provide a price of $97,500. Plaintiffs pray that the court order an accounting, hold that defendant held the real estate in trust at the time of his sale thereof, and that defendant be required to assign to plaintiffs the contract for sale providing for payment, in instalments, of the sale price.
Defendant answered, denying the material allegations of the complaint, and filed a cross complaint alleging that plaintiffs sold him a farm comprised of 444.84 acres at $130 per acre, totaling $57,850, all of which has been paid, that defendant cleared many acres of trees and brush, improved access roads and ditches, expending therefor more than $15,000; in December, 1962, he sold the land for $112,000, payable in instalments over a period of 10 years, his purchasers caused the land to be surveyed and the survey showed that the farm contained 387.246 acres, 57.594 less than conveyed and warranted by plaintiffs, as a result of the survey defendant was required to reduce the sale price to $97,500, and was further required to expend $700, being one-half of the cost of the survey, plaintiffs were advised of the shortage, but refused to pay their portion of the loss; defendant prays judgment in the amount of $25,000. In their answer, plaintiffs denied the material allegations of the cross complaint.
[1-4] Plaintiffs, in order to prevail in their action against defendant, must prove that the relationship of principal and agent existed between the parties. The relationship of principal and agent is a fiduciary one, Doner v. Phoenix Joint Stock Land Bank of Kansas City, 381 Ill. 106, 45 N.E.2d 20; Belleson v. Ganas, 394 Ill. 557, 69 N.E.2d 321. In Bennett v. Hodge, 374 Ill. 326, 29 N.E.2d 524, the Supreme Court said, at page 330: "Where it is sought to establish a fiduciary relation by parol evidence, the proof must be clear, convincing and so strong, unequivocal and unmistakable as to lead to but one conclusion." On review, the findings of the trial court will not be disturbed unless they are manifestly against the weight of the evidence, Schnepper v. Ashlock, 404 Ill. 417, 88 N.E.2d 853.
It is not essential to this opinion to include herein a review of the testimony adduced in the trial of plaintiffs' cause of action, and since to do so would be of no precedential value, we deem it sufficient to say that we have carefully examined the testimony and cannot say that the trial court's findings are against the manifest weight of the evidence.
The evidence shows that on August 21, 1962, plaintiffs and defendant entered into a contract for the sale of plaintiffs' farm to defendant for the sum of $57,850. On August 29, 1962, by warranty deed, plaintiffs conveyed the real estate to defendant and his wife. The parties testified that $10,000 was paid plaintiffs when the contract was signed, and the balance of the purchase price was paid when the deed was delivered.
On December 19, 1962, defendant and his wife entered into a contract with Kermit and Frances Shelby for the sale of the same farm for the sum of $112,000, payable $12,000 when the contract was signed, nine payments of $10,000 each, payable January 1, 1964, and annually thereafter, these payments to include interest at the rate of 5% per annum on the balance remaining unpaid, and a final payment of all principal and interest due on January 1, 1973.
The contract entered into on August 21, 1962, the warranty deed executed on August 29, 1962, and the contract of December 19, 1962, contain identical descriptions of the real estate.
A second contract also dated December 19, 1962, entered into between defendant and his wife, and Kermit and Frances Shelby, is also in evidence. This contract provides for a purchase price of $97,500, contains a different description, and provides for annual payments of $8550. In all other respects the two contracts are identical.
Defendant testified that after he purchased the farm from plaintiffs, he made a number of improvements, and thereafter entered into the first agreement with the Shelbys. He stated that in arriving at the price at the time of the purchase from plaintiffs, the price was $130 per acre, totaling $57,850. After the sale to the Shelbys, the Shelbys insisted on a survey, as the result of which the shortage in excess of 57 acres was discovered, and the price to the Shelbys was adjusted, resulting in the execution of the second contract. On April 22, 1963, defendant's attorney wrote a letter to plaintiffs in which he informed them the survey had been made, and the results thereof, stated that defendant had been required to adjust the sale price with the Shelbys and requesting that plaintiffs communicate with him. Instead of communicating with defendant's attorney, plaintiffs filed this suit.
Although the deed by means of which plaintiffs acquired title to the premises is not in evidence, plaintiff, Emil Meyer, testified that it contained the same description as is found in the contracts between plaintiffs and defendant, the deed from plaintiffs to defendant and his wife, and the first contract entered into between defendant and his wife, and the Shelbys. The description is lengthy but in essence purports to describe "All of the lands southwesterly of the C. & E.I. Railroad" in designated quarters of a specific section, and "all the lands that are situated southwesterly of the C. & E.I. Railroad" in the north half of another section, except a strip of land 50 feet in width adjacent to the railroad right-of-way. The parcels, and the strip excepted, are described as containing a certain number of acres "more or less," but the description, after reciting the exception concludes "leaving 444.84 acres hereby conveyed." The description in the second contract with the Shelbys is stated in metes and bounds, set forth in great detail, and concluding with the statement that the parcel contains 387.246 acres.
Defendant contends that the price at which he bought the land from the plaintiffs was $130 per acre, and he is entitled to a judgment in the amount of $7487.22, being the price per acre multiplied by the number of acres found to be short as the result of the survey. Plaintiffs contend that the sale was on a gross or lump-sum basis, and the number of acres stated in the deed is immaterial.
It is clear from the testimony of the plaintiff, Emil Meyer, and of the defendant, that at the time of arriving at the price at which the farm was sold, all parties computed it on the basis of $130 per acre. The questions presented are whether in view of the mutual mistake, in the absence of proof of fraud, defendant is entitled to ...