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Mcdaniel v. Silvernail

OPINION FILED APRIL 29, 1976.

GEORGE MCDANIEL ET AL., PLAINTIFFS-APPELLANTS,

v.

ALFREIDA WORKMAN SILVERNAIL, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Sangamon County; the Hon. J. WALDO ACKERMAN, Judge, presiding.

MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:

Plaintiffs appeal from the dismissal by the trial court of their complaint for specific performance of a real estate contract, or, in the alternative, for recovery in quantum meruit for the value of materials and services rendered. We affirm.

Plaintiffs' third amended complaint consisted of three counts. All three counts alleged these facts: Defendant is the owner of certain lands in Sangamon County; plaintiff and defendant entered into a written agreement to convey part of that property; in addition to the written agreement plaintiff agreed to make repairs; plaintiff had been in possession of the premises since October 20, 1970, pursuant to a lease but on February 14, 1972, took possession pursuant to the agreement; in reliance on the agreement plaintiff has partially performed; defendant has refused to carry out the agreement; plaintiff has been and is ready and willing to perform.

The first count prayed for specific performance. The second alleges that the Statute of Frauds is not applicable by virtue of part performance by plaintiff. The third count alleges plaintiff is entitled to quantum meruit recovery for the materials and services he has rendered.

The document in question reads:

"2/14/72

I agree to sell to George McDaniel the house on R.R.2, in which he now lives, plus two acres, xxx for $6000. to be agreed.

Alfreida Silvernail

Rent of $70 monthly to be applied as purchase price — less taxes & Ins."

• 1 Manifestly, this writing is insufficient to satisfy the Statute of Frauds (Ill. Rev. Stat. 1971, ch. 59, § 2). A contract for the sale of land cannot be specifically enforced by a court unless the writing contains: (1) the names of the vendor and vendee; (2) a description of the property which is sufficiently certain so that it can be identified; (3) the price, the terms and conditions of sale; and (4) the signature of the party to be charged. Callaghan v. Miller, 17 Ill.2d 595, 162 N.E.2d 422.

From this document, a court would be unable to locate the boundaries of the property to be conveyed. Plaintiffs rely on the Callaghan case and upon Draper v. Hoops, 135 Ill. App. 388. Both are readily distinguishable. In Callaghan, the property described as:

"`[T]he Altha Martin property located on Route 25, north of the city of Batavia, Illinois (not in corporation). This area comprises 5 acres more or less. The space now occupied by 20 trailers is properly licensed and zoned by the State of Illinois and Kane County Zoning Dept. * * *'" 17 Ill.2d 595, 599, 162 N.E.2d 422, 423.

There was no evidence in Callaghan that the seller owned more than 5 acres at that location. The description therefore is referrable to the entire property held by the seller. In the case at bar plaintiffs allege defendant is the owner of a quarter-quarter section but the contract refers to only two acres of that land.

In Draper the property was described as "158 acres in Lee County, Illinois." That was sufficient when supplemented by a definite written description given to the buyer simultaneously with the agreement. However, two parcels of property described as a frame residence in Walnut, Ill., and a two-story house in Franklin Park, Week Resubdivision, ...


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