Appeal from the Circuit Court of Cook County; the Hon. DANIEL
COVELLI, Judge, presiding. Judgment affirmed.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
Rehearing denied February 17, 1970.
Plaintiffs seek to obtain specific performance of an alleged contract to convey a parcel of real estate or in the alternative to recover damages for breach of contract. Defendants moved to dismiss the suit pursuant to sections 45 and 48 of the Civil Practice Act (Ill Rev Stats, c 110, §§ 45, 48 (1967)). As to section 45 defendants contend that the complaint does not state a cause of action and as to section 48, that the claim is barred by the Statute of Frauds. The trial court sustained defendants' motion and dismissed the suit and plaintiffs have appealed. The facts follow.
In 1956 plaintiffs purchased from Consumer's Company, the predecessor firm of Vulcan Materials Company, a five-acre parcel of real estate in McHenry County, Illinois. Plaintiffs allege that Consumer's agent agreed orally to give them priority over other purchasers when and if the defendants decided to sell an adjacent parcel of land consisting of approximately 8.5 acres, and it is this land which is the subject matter of the present litigation. Plaintiffs operated a successful glazing and glass business on the land they had purchased in 1956 and by 1964 required expanded facilities. To fulfill this need they began negotiations for the purchase of the adjacent tract owned by Vulcan and they allege that in March 1965 an agreement was reached. As evidence of that agreement plaintiffs offer two letters to them from Vulcan, one dated February 10, 1965, and the other dated March 16, 1965. Defendants' letter of February 10th suggested terms for the sale of the land and closed with the following:
"If you are interested in this, please notify us so that we may present it to our Board of Directors. Prior to presenting this to the Board, we would expect to receive a firm offer from you including earnest money. . . ."
Plaintiffs' response dated February 19, 1965, contained this passage:
"Terms would be $3000.00 earnest money payable upon approval of the sale by your staff, an additional $14,000 in cash upon acceptance by your Board of execution of Articles of Agreement, and payment of the balance in three equal annual installments at 6% interest on the unpaid balance. . . ." (Emphasis added.)
In a letter from Vulcan to plaintiffs dated March 16, 1965 the following pertinent passages appear:
"In reply to your letter of February 19, 1965, our management is in substantial agreement to submit to our Board of Directors for its approval the sale of property owned by us adjacent to your company at Crystal Lake. The property they will recommend for sale is between your property and Switzer Boat Co.
"Subject to the drafting of an acceptable contract, we feel it would be possible for you to raze, repair or remove. . . .
"If the above is agreeable, please notify us, and we will proceed to draft the contract." (Emphasis added.)
The reply which defendants contemplated came in a letter dated July 26, 1965, signed by Brunette on behalf of plaintiffs. In that letter plaintiffs informed Vulcan of the exact acreage as found by the survey they had taken and then stated:
"I suggest $13,500.00 cash (about 29%) and the balance at 6% in three equal annual installments. Since the land is not on the Assessor's books as a separate parcel, and since most of the year will be gone before ...