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Freiders v. Dayton

OPINION FILED JUNE 29, 1978.

LAWRENCE J. FREIDERS, PLAINTIFF-APPELLEE,

v.

MARTHA DAYTON ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of De Kalb County; the Hon. WILSON D. BURNELL, Judge, presiding.

MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

The plaintiff Lawrence J. Freiders in count I of his complaint sought to specifically enforce a contract to purchase the home of the defendant Martha Dayton. In count II of the complaint he sought to remove a cloud on title resulting from an interim conveyance from Mrs. Dayton to the defendant Vera Champman Taylor, Mrs. Dayton's sister. The defendants appeal from a judgment in favor of the plaintiff as to both counts.

The contract to convey to plaintiff for the purchase price of $18,000 was executed by Martha Dayton, then age 85, while she was an ambulatory patient in the Roosevelt Square Shelter Care Home in Sandwich, Illinois. The closing was set for June 26, 1973. Prior to that time, however, Mrs. Taylor claimed an interest in the home; and on June 26, 1973, Mrs. Dayton transferred title to the home to Mrs. Taylor and to herself in joint tenancy; admittedly for a nominal consideration and for the purpose of clouding the title.

Attorney Louis Neuendorf represented both defendants. As counsel for Mrs. Dayton he answered count I of the complaint with general denials; and alleged as defenses to the contract: (1) That Mrs. Dayton by reason of advanced age and inability to recall or recollect current or past events was presently incompetent; (2) and for the same reason Mrs. Dayton was also incompetent when she executed the contract; (3) that Mrs. Dayton signed the contract as the result of unconscionable conduct by persons in close association with her; and (4) that Mrs. Dayton could not convey marketable title to the property because it was held in joint tenancy with Mrs. Taylor. Counsel also moved in limine to have the court on its own motion appoint a conservator for Mrs. Dayton and to have her declared legally incompetent.

The trial court denied the motions but nonetheless appointed Neuendorf to represent Mrs. Dayton as guardian ad litem. Neuendorf also filed an appearance on behalf of Mrs. Taylor and in an unverified answer to the second count of the complaint Neuendorf neither admitted nor denied plaintiff's allegations.

Pursuant to section 63 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 63), the questions whether Mrs. Dayton was competent at the time the real estate contract was signed and whether there was undue influence on the part of one Jane Tallent were submitted to the jury for the purpose of advising the trial judge.

Richard J. Johnson testified for the plaintiff that towards the end of April or in early May he saw that Mrs. Dayton's home was vacant and became interested in purchasing it, contacted a real estate agent, Mr. Brady, who referred him to a real estate broker Mrs. Ugland, and that some days later Mrs. Ugland quoted him a price of $17,000 or $18,000; but that he offered between eight and 10 thousand and there was no acceptance.

Mildred Ugland testified that she was not acquainted with Mrs. Dayton, although Mr. Brady was; that as a result of a conversation with Mr. Brady and with Mr. Johnson she went to the shelter care home to speak to Mrs. Dayton. She testified that she saw Mrs. Dayton in her room, and that they had a congenial conversation during which Mrs. Ugland brought out the subject of whether the Dayton home was for sale. The witness testified that Mrs. Dayton answered that she was interested in selling and asked what the house was worth. Mrs. Ugland suggested that she would answer if Mrs. Dayton would trust her with a key so that she and Mr. Brady could make an appraisal; that Mrs. Dayton produced the key from her purse and gave it to Mrs. Ugland; and that after viewing the house Mrs. Ugland went to the nursing home the following day. She first visited with Mrs. Dayton in her room in the presence of a roommate, then at Mrs. Dayton's suggestion that they could talk privately they talked in the dining room. Mrs. Ugland said she told Mrs. Dayton that the appraisal was $17,500 and suggested that the house be marketed for $18,000. She testified she told Mrs. Dayton that possibly they couldn't get that much but that they would try and that Mrs. Dayton answered, "That is fine." Mrs. Ugland produced a listing agreement and said that she read it to Mrs. Dayton, sentence by sentence and asked if she understood after each sentence. She received the answer "Yes." She said if she thought Mrs. Dayton did not fully understand she would reread the sentence and Mrs. Dayton would say "You have said that already." At the conclusion she asked Mrs. Dayton if everything was satisfactory and whether she had any questions, receiving the answer "No, I think everything is alright."

Mrs. Ugland testified that Mrs. Dayton was very alert on both occasions. She also said that she had had no acquaintance with either the plaintiff or Jane Tallent at the time she secured the listing agreement nor had they ever contacted her. Mrs. Dayton also asked Mrs. Ugland to get the keys to an antique car in the garage as she wanted her "nephew," Dr. Wright, to have it. Later, she said, she was contacted by plaintiff and Jane Tallent, then plaintiff's fiancee, and showed the house to them. An offer to purchase was signed by plaintiff for $18,000. Mrs. Ugland testified that she brought the offer to Mrs. Dayton and in the presence of Jane Tallent who was working at the shelter care home went over it with Mrs. Dayton word for word. She said that Mrs. Dayton expressed great happiness at getting the full $18,000 and said she "Didn't think she would get that much for the home."

Mrs. Ugland further testified that she went back later to talk to Mrs. Dayton about the furniture in the home since it had not been discussed. Mrs. Dayton suggested that it be sold privately piece by piece and not at auction. Plaintiff and Jane Tallent expressed interest in the furniture to Mrs. Ugland and she went back to the home to talk to Mrs. Dayton on three occasions. A price for all of the items was agreed upon in the amount of $2,000.

Mr. Brady testified that he made his appraisal on the basis of his detailed inspection and upon a list of properties from his records of sales which he considered comparable in value. He further testified that Mrs. Dayton had contacted him in early December of 1972 and asked that he bring out an office calendar. When he did she told him that before long she would be unable to continue living in the house and in the spring or summer she was going to sell it.

Marjorie Campbell testified for the plaintiff that she was the administrator of the Roosevelt Square Home from August 1971 to June of 1973. She first met Mrs. Dayton in the summer of 1972 when Mrs. Dayton spoke to her about admission policies. She said Mrs. Dayton was admitted in the fall or possibly in January of 1973. The usual procedure was followed consisting of an interview and a report of a medical examination conducted within three days to determine if the applicant was ambulatory, mentally alert and able to be fairly self-sufficient. She said that Mrs. Dayton returned home in June of 1972 but returned to the home in the winter time with again a medical certificate being furnished. The witness left the home in June of 1973 but she said that while administrator she had talked with Mrs. Dayton many times. She said Mrs. Dayton mentioned selling her house prior to May of 1973, said she was undecided about it but she didn't think she could take care of the house by herself. The witness also testified that Jane Tallent had helped Mrs. Dayton write her checks, pay bills, record her incoming funds and had taken her deposits to the bank but this was all done with Mrs. Dayton's approval which she would indicate by her initials; and that the help was given because of Mrs. Dayton's physical difficulties.

Rebecca Murray, who was employed at the home, testified to a conversation with Mrs. Dayton prior to May of 1973. She said that Mrs. Dayton worried about selling her home and asked what she should do and, in fact, asked Mrs. Murray to buy it at one time. Mrs. Murray said she did not have the money but she told Jane Tallent about the conversation in April or March of 1973. Mrs. Murray also gave her opinion that Mrs. Dayton was capable of transacting and understanding ordinary business affairs, was alert, and her only serious complaint was that she had arthritis of her feet. She also testified that after May 7, 1973, possibly in the last four weeks before the trial, that she had become more confused. Plaintiff also adduced the testimony of Lester Hage who had been an assistant cashier at the Sandwich State Bank and had known Mrs. Dayton for a long period of time and had further talked to her after she had refused to go through with the contract. He gave the opinion that Mrs. Dayton was very capable of transacting and understanding ordinary business affairs.

Defendants adduced the testimony of Dr. Mattson, a general practitioner, who testified out of the presence of the jury that he examined Mrs. Dayton in the hospital in July of 1974. He diagnosed a myocardial infarction with pulmonary edema. He also said that she had come to his office on various occasions in 1973 and early 1974 mainly for the care of her feet. His records also show a condition of diabetes for the patient. He further said that he examined Mrs. Dayton on March 6, 1975, the evening before he testified and found her to be ...


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