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Well v. Schoeneweis





APPEAL from the Circuit Court of Macoupin County; the Hon. JOHN W. RUSSELL, Judge, presiding.


___ N.E.2d ___ Plaintiffs, buyers at a public auction of farm land, brought this action for specific performance against the defendant sellers. The circuit court of Macoupin County, sitting without a jury, entered judgment in favor of the plaintiffs and the defendants appeal. We affirm.

The evidence and exhibits at trial disclose that the defendants determined to sell their interests in 98 acres of farm land and to that end employed Homer Henke, a real estate salesman and broker as well as an auctioneer. Under their direction Henke prepared the sale bills and advertising on a budget set by defendants. He was to be compensated by a commission predicated on the sale price which he obtained.

The sale bills which were distributed prior to the sale contained the following:


Buyer to enter into written real estate contract. Purchase price 98 acres X per acre bid price, unless buyer elects to have survey made at buyers expense. In which case, acreage determined by survey will be used. Buyer to pay ten per cent [10%] of purchase price day of sale and balance within 30 days or upon delivery of warranty deed conveying merchantable title. Buyer to have possession of tillable acreage after 1979 crops have been harvested. Buyer to have possession of remainder upon completion of Real Estate contract. Seller to pay 1979 taxes due in 1980. Buyer to pay 1980 taxes due in 1981. Sale held subject to owners approval."

At some time after the printing of the sale bills the defendants agreed with the auctioneer that they would offer the farm on an option as well as under the terms of the sale bill. The option was to allow the highest bidder to purchase the farm with a 10-percent downpayment on the day of the sale, then quarterly payments for 10 years under a contract for deed. The defendants also decided to allow the purchaser the option of taking a landlord's share of the crops and pay the 1979 taxes due in 1980 or to leave the landlord's share of the crops with the defendants, requiring them to pay those taxes.

The sale was held on Saturday, July 14, 1979, and was cried by Henke as previously arranged. There is no dispute that the alternative terms concerning installment payments were announced at the sale by Henke. Plaintiffs were the successful bidders and tendered to Henke their check in the amount of 10 percent of the purchase price. They and Henke then signed a printed form which bore Henke's advertising and picture at the top and then is read in pertinent part as follows:


I certify that I am Ready, Willing and Able to pay $118,090 for the 98 Acre Farm — Schoeneweis and Evans Property Property in Macoupin County, in the state of Illinois and to Immediately Execute a SALES-PURCHASE CONTRACT, Subject to the Terms and Conditions as Publicly Announced this date:

July 14, 1979 Don Well Lloyd Well Brighton, Ill. Buyer Olen Leonard Buyer Address: Brighton ; Phone 372-3630 Witness: Homer Henke [Underscoring indicates blank lines on the form; material inserted is handwritten on original.]"

The purchase offer form, as set forth above, was admitted at trial without objection. Henke testified that the check was tendered and the purchase order form executed immediately after the property was struck off to plaintiffs, but then a dispute erupted concerning the meaning of "quarterly payments." Plaintiffs asked if such payments could be made in smaller amounts from the beginning with a "balloon" payment at the end. Henke and defendants insisted that equal payments were meant. It was then agreed that all parties would meet at the office of defendants' attorney to settle the matter.

The meeting was held the following Wednesday with plaintiffs, defendants, defendants' attorney, and Henke present. The evidence was in conflict as to what the various parties understood from the meeting. It is clear that the quarterly payments were supposed to be equal, but the principal difficulty arose over defendants' proposition, broached outside plaintiffs' presence, that the interest rate be reduced from 10 percent to 8 percent and that the gross sales price per acre be inflated accordingly; there was also some discussion about an assignment from defendants to plaintiffs of a contract for deed which was the basis of defendants' ownership of the 98 acres. Defendants were the contract purchasers from a third party and apparently were attempting to use the assignment method as a partial payment on the gross purchase price.

In any event, a contract was drawn up with the increase in gross price per acre and a concomitant reduction in the interest rate, together with an assignment from defendants to plaintiffs of their contract for deed. ...

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