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Whewell v. Cox

OPINION FILED OCTOBER 28, 1977.

LONNIE WHEWELL, PLAINTIFF-APPELLANT,

v.

KENNETH COX, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Scott County; the Hon. BYRON E. KOCH, Judge, presiding.

MR. JUSTICE SLATER DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 30, 1977.

This action arises out of a complaint filed on April 23, 1976, in the circuit court of Scott County requesting that the court establish a constructive trust over a farm purchased by the defendant, Kenneth Cox. The basis for the complaint was that defendant occupied a confidential or fiduciary relationship to the plaintiff and had violated this relationship by not conveying certain farmland (hereinafter called "the Jones farm") to the plaintiff pursuant to an oral contract. Defendant denied the plaintiff's allegations and counterclaimed against the plaintiff requesting possession of the Jones farm, which plaintiff occupies, and for an accounting to be taken between the parties to determine the crops raised, the livestock pastured, and the rent due from the plaintiff. A bench trial of these issues was concluded on February 7, 1977, with verdict for the defendant on all issues except as to the issue of an accounting which was postponed pending the appeal.

Plaintiff, a farmer, was living on and operating a farm at Bluffs, Illinois, at the time of the occurrence. Defendant is employed by Fressen, Inc., and is in charge of the yards at that company which is located at Bluffs, Illinois. The plaintiff's wife is a sister to defendant's wife and the families have often visited each other in their homes. Because of their friendship, the plaintiff took a job with defendant's company when the defendant told plaintiff's wife he needed a truckdriver.

On March 19, 1972, the plaintiff and his two sons were working on the Bluffs farm when the defendant drove in and approached them. At this point there is a difference in the record as to what was said between the plaintiff and the defendant. The plaintiff and his sons testified that the defendant asked the plaintiff if he was going to buy the Jones farm at the forthcoming auction and that when the plaintiff replied that he did not have sufficient finances, the defendant stated, "How would it be if I bought it for you." The plaintiff and his sons testified that the plaintiff responded by saying that would be fine if everything could be worked out. The defendant, on the other hand, states that he did not offer to buy the Jones farm for the plaintiff at that time nor any other time but only wanted plaintiff's advice concerning the value of the farm. Following this conversation, the plaintiff and the defendant inspected the Jones farm but no more mention was made concerning the purchase of the farm by the defendant for the plaintiff.

The only other discussion before the actual purchase of the Jones farm by the defendant was at the defendant's home on the eve of the auction. The defendant's wife had called the plaintiff's wife and asked them to come to defendant's residence to discuss the purchase of the Jones farm. Once again there is a difference of opinion as to what transpired at this discussion. Plaintiff and his wife alleged that defendant thought that plaintiff could afford the farm but plaintiff did not agree and expressed doubts as to his ability to pay for the farm. Then the defendant asked the plaintiff for an estimate on how high the defendant should go in the forthcoming auction. The plaintiff estimated about $300 per acre and then the defendant's wife said, "Give them whatever it takes to get it for them." Defendant's testimony concurred with plaintiff's as to the fact that plaintiff had told him he did not have the financial resources to purchase the Jones farm but neither defendant nor his wife remember anything about the defendant's wife's statement that the defendant would buy the land for the plaintiff.

On March 24, 1972, the Jones farm was acquired by defendant for a bid of $213 per acre. According to plaintiff's wife, the defendant called her the same day and told her, "We got the farm." Defendant does not recall whether he made such a phone call.

Following the purchase of the Jones farm, the plaintiff prepared the ground for the planting of crops and on May 29, 1972, plaintiff moved to the Jones farm and commenced remodeling the farm and making improvements. For the ensuing four years, plaintiff lived on the Jones farm and planted and harvested the crops. During this time, plaintiff requested that defendant prepare a contract for deed. Plaintiff alleges that he made such a request on three different occasions — November 1973, February 1976, and April 1976, and defendant admits to numerous requests but counters this argument by saying he never intended to sell the land to the plaintiff. Plaintiff asserts that he tried to borrow money ($41,000) in order to pay for the farm and was referred by defendant to a loan officer of a local bank but was unsuccessful in procuring the loan. Thereafter, the plaintiff succeeded in obtaining a loan at another bank, but the defendant refused to turn over the abstract to the bank stating he did not intend to go through with the deal. The plaintiff then mailed a "tender and demand" notice to the defendant in the amount of $41,000, although no check accompanied the notice.

Shortly thereafter, defendant served plaintiff with a notice to quit. Plaintiff filed his complaint on April 23, 1976, claiming that a fiduciary or confidential relationship had been formed prior to the sale and that because of defendant's failure to sell the land to plaintiff, there was a breach of that fiduciary relationship which should be remedied by a constructive trust.

At trial, plaintiff produced testimony and evidence meant to be indicative of his ownership of the land. The defendant countered by producing evidence and testimony which would indicate a landlord-tenant relationship existed rather than vendor-vendee relationship.

The plaintiff testified as to improvements and operations on the farm which would indicate he was more than a mere tenant.

The following testimony appears in the record:

1. Plaintiff paid for and selected all seed, fertilizers, and herbicides.

2. Defendant made no request for definite payments.

3. Defendant made no suggestions on how the farm was to be operated.

4. Defendant offered no evidence that he ever paid for any improvements on the farm in four years of its operation. ...


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