Appeal from the Circuit Court of Cook County; the Hon. DAVID
A. CANEL, Judge, presiding. Judgment reversed and remanded.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
This is an appeal from a judgment on a verdict directed by the trial court in favor of the plaintiffs, for the sum of $8,700 and costs of the suit. The parties involved negotiated for the purchase of plaintiff's (Sullivan) house and after the terms were agreed upon a written form of agreement was prepared. It was signed by the record owner as trustee; Sullivan, one of the beneficial owners; and Kathryn H. Carlstedt, the purchaser. It provided inter alia that "the purchaser has deposited $8,700.00 as earnest money with the Chicago Title and Trust Company as escrowee, pursuant to the terms of the escrow agreement hereinafter mentioned . . . (and) . . . in case purchaser shall be in default under the terms hereof and such default shall continue for a period of ten days after notice by sellers to purchaser and said escrowee, sellers may terminate this contract, in which event the earnest money shall be paid to sellers as liquidated damages. . . ."
The parties were to meet at the office of the escrowee on June 12, 1961, at 10:30 a.m. Defendant's attorney, John Munro, learned that the hour of 10:30 a.m. was inconvenient to the escrowee and changed it to 9:15 a.m. He telephoned Sullivan and advised his secretary of the change. Sullivan was not told of the change and did not appear until 10:30 a.m. In the meantime, John Munro appeared at 9:15 a.m. and later went to his office. Sullivan then arranged for an appointment for the following morning at 10:00 a.m.
On June 13, 1961, at about 8:00 a. m, the defendant's husband, Fred Carlstedt, came to the Sullivan home and told Mr. and Mrs. Sullivan that Mrs. Carlstedt was very upset and wanted to withdraw her offer to buy the house. Carlstedt later testified:
"And then I said, `You have been to some trouble. I'll give you $500 for your trouble.' And he said to me, he says, `I don't want your $500. I got all the money that I'll ever need. I don't care to deal with your kind of people. If your wife doesn't want the house, that's all right with me, and you can tell her there's no deal.'"
Sullivan denied this. He testified as follows:
"Well, I was having breakfast at my home about 7:20 in the morning or maybe 7:30 and he (Carlstedt) appeared at the door and I invited him in and he told me that there was some disagreement in the family and, therefore, he wasn't going through with the deal, very nervous about it. Well, I said, `I'm sorry to hear it. As far as I am concerned you are going through with the deal,' and then he offered me $500 to call the matter off. I said, `No I am not interested. I will see you in court.'"
The sellers filed suit for damages of $8,700 pursuant to the above mentioned written document. The defendant answered denying that there is or ever was a contract between her and the plaintiffs, or either of them. Subsequently, defendant filed a first amendment to her answer stating that:
"Defendant is informed, believes, and therefore, alleges in the alternative, that if a contract was consummated as alleged in the complaint, that contract was rescinded by the mutual agreement of the parties on June 13, 1961."
The plaintiffs replied denying the allegations and legal conclusions pleaded by the defendant and answered further that if the contract was rescinded then the agreement to rescind was a contract and was barred by the Statute of Frauds. Chapter 59 of Ill Rev Stats, § 2.
At the close of all the evidence plaintiffs moved for a directed verdict which the trial judge granted and directed the jury to return a verdict in favor of the plaintiffs and assess the damage in the sum of $8,700.
On Appeal, defendant contends:
(1) That there was no contract and defendant had the right to withdraw her offer;
(2) That the questions of plaintiffs' acceptance of defendant's offer and whether the contract, if any, was mutually rescinded, ...