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Tolbird v. Howard

OPINION FILED NOVEMBER 26, 1969.

JERRY TOLBIRD ET AL., APPELLEES,

v.

JAMES M. HOWARD ET AL., APPELLANTS.



APPEAL from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Sangamon County; the Hon. JERRY S. RHODES, Judge, presiding.

MR. JUSTICE CULBERTSON DELIVERED THE OPINION OF THE COURT:

Plaintiffs, Jerry Tolbird and Lora Tolbird, sellers, sued defendants, James M. Howard and Alma R. Howard, purchasers, to recover certain unpaid installments allegedly due on an installment contract for the sale of real estate. Also included in a separate count is a complaint for judgment on a $552 promissory note given plaintiffs by defendants at the time of the sale. Defendants answered setting up numerous defenses and counterclaimed for $552 alleging plaintiffs misrepresented their ownership of the property. The trial court, after a bench trial, entered judgment against plaintiffs on the complaint and against defendants on the counterclaim. The Appellate Court for the Fourth Judicial District reversed the trial court judgment for defendants as to the contract installments and affirmed the judgment against defendants on their counterclaim, holding the contract valid and enforceable but the note unenforceable. (101 Ill. App.2d 236.) We granted leave to appeal.

With the reservation hereinafter noted we affirm the Appellate Court judgment as to count II relating to defendants' liability under the installment contract. Its affirmance of the trial court's judgment as to count I, however, must be reversed. That count sought judgment upon the promissory note above referred to. The trial court entered judgment for defendants, but made no findings of fact. It is necessary for us to consider only one of the defenses raised by defendants, for the Appellate Court's disposition of the other defenses in its discussion of the contract liability is also applicable to the note. The exceptions to this are defendants' contentions regarding the absence of consideration and the existence of a valid, oral agreement entered into contemporaneously with the execution of the written contract. That contract obligated plaintiffs to furnish defendants with an abstract showing merchantable title in plaintiffs, but specified no date for delivery of the abstract. Defendants contend the parties discussed this, and plaintiffs agreed to furnish this evidence of title prior to the due date of the second installment. Such discussion and agreement never occurred according to plaintiffs.

As earlier noted, the trial court judgment was not accompanied by any findings of fact, and it is impossible to be certain whether the trial court believed plaintiffs had failed to prove an essential element of their case or found one or more of the defenses were sufficient. Since a reviewing court must presume a trial court entering judgment in favor of defendant has found all controverted facts in his favor (Mulvihill v. Shaffer, 297 Ill. 549, 553; see Union Drainage Dist. v. Hamilton, 390 Ill. 487, 493) we are bound to assume the trial court found a valid, oral contemporaneous agreement to deliver the abstract prior to the second installment due date had been made and breached by plaintiffs. It is defendants' position that plaintiffs' breach of this agreement rendered the written contract unenforceable. Were this true, the consideration for the execution of the note would also be eliminated.

We have carefully examined the evidence relied on by defendants as establishing the oral contemporaneous agreement. It consists principally of the testimony of defendant James Howard which is generally vague and largely conclusional in nature. It is, in our opinion, clearly insufficient to establish any agreement by plaintiffs to furnish an abstract of title before the due date of the second installment or at any other specified time prior to completion of the contract. If a finding to the contrary was the basis for the trial court judgment, that finding was, in our opinion, contrary to the manifest weight of the evidence. Since we hold the evidence insufficient to establish such agreement, we need not consider its effect.

The defense to the suit on the note of the absence of consideration is also predicated in part on the parol evidence rule. Defendants point out that the written contract provided that "the total purchase price to be paid by BUYERS to sellers shall be the sum of TWENTY THOUSAND, FOUR HUNDRED SIXTY-NINE AND 78/100 DOLLARS ($20,469.78) * * *", and urge that plaintiffs cannot now vary these terms by showing the sale of the property was also the consideration for a note not referred to in the written contract. Plaintiffs argue that, notwithstanding the above clause in the contract, the sale of the property was the consideration for the note. Jerry Tolbird testified that he had previously contracted to sell the property to a couple on an installment sale with the monthly installments equal to the monthly payments. The husband had died, and Tolbird had permitted the widow to remain in the house without meeting the installments. At the time the parties to this action were negotiating their agreement, plaintiffs had made three monthly mortgage payments without having received corresponding amounts from the widow. Tolbird testified that he requested that defendants pay plaintiffs the total of these three monthly mortgage payments and then continue to pay the mortgage payments to the mortgagee until the mortgage was satisfied. Tolbird testified, "this is like a down payment". The following then occurred:

"Q. [Defense counsel] This note was, then, the back rent payments?

A. No, it was not back rent.

Q. This was down payment then, is that correct?

A. I presume you could call it the down payment.

Q. Why is there no down payment recited in the contract?

A. When I had the contract drawn up I told Mr. Mills [a lawyer] I would be getting five hundred fifty two dollars down and would he please write this up for me, this is the way he told me to do it.

Q. But it is not recited in the ...


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