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Thomas v. Moore





APPEAL from the Circuit Court of Jackson County; the Hon. EVERETT PROSSER, Judge, presiding.


Rehearing denied January 9, 1978.

Plaintiffs Walter Thomas and Mary Thomas filed suit in the circuit court of Jackson County on May 11, 1976, asking the court to grant specific performance of an alleged oral agreement for the conveyance of land entered into between the Thomases and the defendants Kenneth Moore and Wilma Moore. The Moores denied the oral agreement and asserted the affirmative defense of the Statute of Frauds. They counterclaimed for possession and damages resulting from the Thomases unlawful withholding of possession of the land which is the subject of this dispute. The circuit court entered judgment granting specific performance of the alleged oral agreement, from which order the Moores appeal.

The appellants present two issues for review; (1) Was there an oral agreement between the parties for the sale of real estate when the Thomases entered into possession of the land? (2) Was there sufficient part performance to remove the alleged oral contract from the Statute of Frauds (Ill. Rev. Stat. 1975, ch. 59, par. 2)?

Walter Thomas testified that he and Kenneth Moore had gone into business together hauling gravel in April of 1975. He said that he had asked Moore a number of times to sell him some land on which he could put a trailer and live with his family. Moore told him that he did not have any land at the present time that he wanted to sell. However, Thomas said that when he offered to trade all of his radio equipment for a piece of property Moore agreed. He said that Moore took him to look at the piece of property on which the Thomases are presently living, and agreed to trade that piece of property for the radio equipment which Thomas alleged was worth approximately $850.

Thomas and Moore picked the radio equipment up from Thomas's ex-wife's house and took it to Moore's home. When they took the equipment to Moore's house, Thomas asked Moore's wife, Wilma, if it was all right for Moore to trade the property for the radio equipment. She replied that it was Moore's ground, that he could do what he wanted with it and if they traded, she would sign a deed at any time they were ready. The radio equipment was hooked up and the Moores used it until April of 1976.

The tract of land in question is the back corner of Moore's property, enclosed by a fence, with railroad tracks running behind it. Thomas testified that Moore told him he could have an acre in the corner of the property by an old well. Thomas said there was a fence around the area which had to be cut to bring the trailer into the area. Mary Thomas also testified that the area was enclosed by a fence which had been there since they moved onto the property. Walter Thomas said that Moore ran a single strand of wire across the opening to prevent his cattle from getting out and Thomas later added more wire.

Thomas testified that Moore told him it would cost approximately $400 to $450 to get the deed and that at the time he did not have that amount of money.

Prior to moving onto the property, Thomas had power lines put in. He obtained a right-of-way easement from Moore, a copy of which appears in the record, signed by both Moore and Thomas.

The Thomases' trailer was then set up on blocks and underpinned. Walter Thomas cleaned out the old well on the property and Moore helped him on the last day they worked on it. Thomas cleared the area of brush and built a pole barn for his wife's horse. He hauled rock in for a driveway. Mary Thomas testified that no septic system was installed because they could not have one installed until they had a deed to the property.

Mary Thomas said she talked to Moore on the phone on November 17, 1975, and told him that they were getting the money for the deed. Moore said not to worry, that any time they wanted the deed would be fine. Walter Thomas testified that in April of 1976 he told Moore to ask his wife when she would sign the deed and the next day Moore told him that she refused to sign.

Walter Thomas said that after Moore refused him the deed in April of 1976 their business relationship ended. Soon after this the Thomases received a demand of possession from the Moores.

Kenneth Moore testified that Thomas had continually approached him about buying land, but denied that he ever agreed to trade any of his land for Thomas's radio equipment. He said that he and Thomas never had a conversation about the cost of getting a deed, but that he told Thomas that if he sold him an acre of land, it would cost more than the land was worth, so he was not interested in talking about it. He testified that he told Thomas he did not want to sell any land but if Thomas could not find any land to buy, he could move his trailer onto a piece of his land which had an old well and some shade trees. About two weeks later Thomas moved onto the land and Moore helped him pull the trailer onto it.

Moore admitted that he had Thomas's radio equipment but that it was in a box and not being used. He and Thomas brought it to his house because Thomas's ex-wife wanted it removed from her home. Thomas set it up and wanted them to use it. Moore said that the equipment was worth approximately $350.

Moore testified that he did not construct the fence until several months after the Thomases moved onto the land, when his cattle were getting out through an open gate. Moore recognized the signature on the easement as his but did not remember signing it.

Moore said that his business with Thomas ended in the fall of 1975 when Thomas told him that he was quitting. He said he and his wife asked the Thomases to leave in April of 1976 because the Thomases were slandering them.

Wilma Moore denied ever having a conversation with Thomas concerning the transfer of land. She said the only conversation concerning a deed occurred when Thomas demanded one in April of 1976 when she said she would not sign any kind of deed. She testified that when Thomas brought the radio to her home she told him she did not want it, but he hooked it up anyway. She said they used it until April of 1976 when they gave the Thomases notice of demand of possession because the Thomases were saying things about the Moores.

Dotty Lipe, a woman who sews for Wilma Moore, testified that she had a conversation with Mrs. Moore concerning the radio Mrs. Moore was using. Mrs. Moore told her she and her husband had gotten the radio for nothing — that they had traded an acre of useless ground they did not need for it. Wilma Moore ...

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