APPEAL from the Circuit Court of Carroll County; the Hon. JOHN
W. RAPP, JR., Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
This action was brought by plaintiff, Loyde Haas, for the possession of certain real property based on the failure of the defendant, Dave Cravatta, to pay the balance of the purchase price due under an allegedly oral contract of sale. A second amended complaint reiterated the prayer for possession of the property and, in the alternative, asked for specific performance of the contract. In his answer to the second amended complaint defendant admitted the existence of the contract in question but denied that it was an oral contract. He further denied that plaintiff had a right either to possession of the property or to specific performance. After a bench trial the trial court entered judgment for the plaintiff and ordered possession of the premises restored to the plaintiff and the return of monies paid on the contract to the defendant. No specific ruling was made on the plaintiff's right to specific performance. Defendant appeals.
In March 1969 plaintiff agreed to sell and defendant agreed to buy certain real property owned by plaintiff. In connection with this agreement plaintiff and his wife signed and delivered the following document to defendant:
"Received of Dave J. Cravatta, the sum of $500.00 toward the total price of $11,000.00, for the purchase of our house located at 604 North Main Street, Savanna, Illinois
/s/ Loyde Haas /s/ Olga Haas"
Defendant took possession of the property in March 1969 and between that time and the time of trial defendant has either lived there, allowed his relatives to live there or collected rents from tenants living there. Defendant paid the insurance premiums and property taxes on the property until 1975, either directly or by reimbursing plaintiff. Plaintiff paid the 1975 property taxes due in 1976 and, although the testimony is not totally clear, plaintiff also apparently paid insurance premiums in 1976. Including the initial payments, defendant has paid $2000, reducing the total due on the principal to $9000. Title has never been transferred and remains in the name of plaintiff. Plaintiff has never formally tendered title to defendant or prepared an abstract of title. Defendant has never demanded a tender of title.
Plaintiff testified at trial that both he and defendant expected the entire purchase price to have been paid within two months after the transfer of possession but that defendant had claimed continuing inability to raise the money. Plaintiff further testified that after some time he suggested that the defendant should pay interest on the money and defendant had agreed. Defendant denied the existence of any understanding that the entire price would be paid within two months and also that he had any agreement with plaintiff on the matter of interest. The record before us does not indicate exactly when defendant believed the money to be due. He apparently believed he would not have to pay the money for the property until he was able to because he and plaintiff were good friends and because he helped plaintiff to buy automobiles at cost.
The trial court granted plaintiff's judgment on the first count of the second amended complaint and gave plaintiff possession of the property stating:
"Before the court can decide whether interest or specific performance can be allowed, the agreement must pass the Statute of Frauds (Chapter 59, Section 2, Ill. Rev. Stat., 1975).
* * * the terms and conditions [of the contract] are patently ambiguous. The memorandum has neither a due date for payment, a date for delivery of the deed, [nor] a requirement that title be clear. The agreement does not contain the signature of the party to be bound, Mr. Cravatta. In short, there exists no valid or enforceable agreement."
1 Defendant contends that reliance on the Statute of Frauds by the trial court was incorrect as a matter of law. We agree for several reasons and therefore reverse the trial court's judgment for plaintiff on the first count. First, the Statute of Frauds is an affirmative defense that can be either pled or waived by a particular party. (See Ill. Rev. Stat. 1975, ch. 110, par. 43(4).) While in unusual cases a party may amend its pleadings to introduce the statute after trial has begun (see Mapes v. Kalva Corp. (1979), 68 Ill. App.3d 362, 386 N.E.2d 148), a trial court cannot raise an affirmative defense sua sponte. Terminal Freezers, Inc. v. Roberts Frozen Foods, Inc. (1976), 41 Ill. App.3d 981, 354 N.E.2d 904.
2, 3 Second, both parties admitted the existence of a contract in their pleadings and, therefore, have waived the Statute of Frauds. It is a very basic tenet of contract law that
"The purpose of the statute is not to enable contractors to repudiate contracts that they have in fact made; it is only to prevent the fraudulent enforcement of asserted contracts that were in fact not made." ...