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Pendleton v. King

OPINION FILED NOVEMBER 28, 1977.

BIRDIE E. PENDLETON ET AL., PLAINTIFFS-APPELLEES,

v.

FRANK A. KING ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of St. Clair County; the Hon. JOHN J. HOBAN, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the circuit court of St. Clair County. In that order, specific performance was granted to the would-be purchasers, the plaintiffs, Birdie E. Pendleton and Trois N. Pendleton, for the sale of a lot located in Caseyville, Illinois, against the defendants-appellants, Frank A. King and Carolyn F. King.

In early 1974, Birdie Pendleton entered into negotiations with Frank King for the purchase of a lot in Caseyville, Illinois. The evidence is clear that Mrs. Pendleton viewed the property with Mr. King, discussed terms of sale, offered to purchase the property with her son, Trois Pendleton, and paid $400 to the Frank A. King Agency as a down payment on the land. Title to the property was in Frank A. King and his wife, Carolyn F. King.

When the Frank A. King Agency prepared a contract for deed and bond for deed and presented them to the Pendletons, the Pendletons executed the documents and returned them by mail to the Agency. Frank King signed both documents, but never delivered them to the Pendletons, and later scratched his name off both instruments.

At the time these activities were taking place, Carolyn King, the wife of Frank A. King, was employed in the Frank A. King Agency office. She prepared the bond for deed on this transaction, and received monthly checks for $30 from the Pendletons at the Agency office for March, April, May, June and July, 1974.

In May 1974, the Pendletons took possession of the lot. They constructed a concrete foundation pad, installed a septic tank system, built sidewalks and a driveway, constructed a tool shed, installed electrical wiring, moved a mobile home trailer onto the lot, removed its wheels, and had a permanent foundation affixed around the base of the trailer.

Mrs. Pendleton talked to Mr. King on at least two occasions after the contract for deed and bond for deed were returned to the Agency. The nature and subject matter of the subsequent conversations with the Kings are in dispute.

This case presents several issues. Was there an oral contract between the Pendletons and the Kings sufficiently definite in its terms to permit specific enforcement? Assuming there was an oral contract, is enforcement barred by the Statute of Frauds? If a contract does exist, and if it is not barred from enforcement, does it bind Frank A. King only, or is it also binding on his wife, Carolyn King? Have the purchasers violated a covenant in their agreement by placing a mobile home trailer on the lot? Finally, evidentiary objections are raised by the defendants.

• 1 In In re Estate of Holder (1976), 42 Ill. App.3d 35, 37, 355 N.E.2d 333, the court restated the basic rule regarding specific enforcement of contracts, when it said:

"* * * To justify a decree of specific performance, our supreme court has held the proof of the terms of the agreement to be performed `must be clear, conclusive and so convincing as to leave no doubt in the mind of the court and it must be made to appear that the terms of the contract are certain, definite, and unequivocal.' (Moehling v. W.E. O'Neil Construction Co. (1960), 20 Ill.2d 255, 265, 170 N.E.2d 100, 106; Pocius v. Fleck (1958), 13 Ill.2d 420, 150 N.E.2d 106.) Apart from the above-mentioned unexecuted contract, there is nothing in this record to show a meeting of the minds on the price or terms of the contemplated transaction for which specific performance is sought."

• 2 Unlike Holder, there is ample consistent evidence of the price, terms and identity of the real estate in question by both plaintiffs and defendants. There is testimony of Frank King, Carolyn King and Birdie Pendleton that there was a purchase price of $2,475, of which $400 was to be a down payment, and the balance to be paid in monthly installments of $30. The Pendletons did execute a contract for deed and bond for deed after those documents, setting out the terms as stated above, were prepared by the sellers' real estate agency. Indeed, Frank King even signed the documents, although they were never delivered to the Pendletons and the signature was later scratched off the documents.

In Manias v. Yeck (1957), 11 Ill.2d 512, 144 N.E.2d 596, the supreme court found an enforceable oral contract on the basis of "testimony regarding the existence of such a contract [that] finds substantial corroboration, including testimony from disinterested parties, * * *, [that] is consistent with and actually confirmed by the subsequent events." Here there is evidence even more persuasive than testimony of disinterested parties — testimony of both interested parties.

Two neighbors were trading narrow strips of land in the Manias case, so that one of them could build a bigger garage for his tenants. The buyer gave the seller $100, which the seller kept, and commenced building his new addition to the garage. The seller watched him build it, and even offered suggestions. At a later date the buyer attempted to reduce the transaction to written form, and hired an attorney for that purpose. There, as here, the written transaction was not completed, despite the buyer's efforts. Subsequent events, in both the Manias case and the case before us, corroborate the existence of an oral contract between the Pendletons, and at least Frank King. Contrast this to the facts in In re Estate of Holder, cited above.

The court in Manias found no difficulty in granting the specific performance once the oral contract had been ...


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