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Intini v. Marino

OPINION FILED JANUARY 28, 1983.

ANTHONY INTINI III ET AL., PLAINTIFFS-APPELLANTS,

v.

ANN MARINO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Richard L. Curry, Judge, presiding.

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiffs' second amended complaint for damages and for specific performance of a contract for the sale of real estate was dismissed with prejudice. They appeal from the order of dismissal and present as the only issue whether the second amended complaint alleged the existence of a valid contract and thereby stated a cause of action for specific performance.

The hearings on defendant's motion to strike and dismiss the second amended complaint adduced the following:

On December 1, 1979, defendant entered into a written agreement with the House of Realty, Inc., a corporation authorizing it or its agents, servants and employees to sell her residence at 6360 Indian Road, Chicago.

After Sandi Goldsher, a broker with the House of Realty, Inc., informed them that Benjamin Ordower, an attorney, had authority to enter into a real estate sales contract on defendant's behalf, and that plaintiffs should submit their offer to Ordower, plaintiffs on May 14, 1980, submitted a second signed offer to purchase to him. When Ordower met with Anthony Intini on May 16, 1980, he confirmed his authority to contract on behalf of the defendant.

They discussed the offer and when Ordower changed the terms of the May 14, 1980, offer by: (a) increasing the purchase price; (b) changing the date of possession and closing date; and (c) changing the terms of the mortgage payments, Ordower agreed to draft an appropriate document memorializing the changed terms of plaintiffs submitted second offer because "he had crossed out and initialed changes in the signed [real estate] contract [sic] of May 14, 1980."

Upon receipt by plaintiffs of Ordower's new proposed agreement on May 23, 1980, they noted that Ordower had incorporated changes differing from previous offers, including inter alia, a provision calling for a $5,000 earnest money deposit to be made within five days. Ordower's proposal was unsigned and undated. Later that day when Anthony Intini called Ordower to discuss the "minor discrepancies" in his proposal, including the earnest money deposit, he was informed by Ordower's son and partner, Larry, that Ordower was out of town.

Thereafter, plaintiffs sold their own residence, arranged to surrender possession to their purchaser on or about June 30, 1980, retained professional movers, and entered into contracts for the purchase of furniture for their new home and when Anthony Intini spoke to Salvatore Marino, defendant's son, Salvatore indicated that everything was satisfactory and that the closing date would be delayed until Ordower's return.

However, after plaintiffs learned on June 7, 1980, that defendant had entered into a real estate contract to sell the subject property to a third party through Ordower and the House of Realty, Inc., and that on or about May 26, 1980, Goldsher had been instructed by Larry Ordower to accept a real estate contract from the third party who had since moved into the property and been given clear title by the defendant Anthony Intini. Anthony Intini filed his verified complaint for specific performance on June 12, 1981. He subsequently amended it to include his wife Kathleen as a party plaintiff. Later after various pleadings were filed, plaintiffs filed their second amended complaint. Defendant's motion to dismiss this complaint stating, inter alia, that "the alleged contract upon which [the] complaint is based was an unwritten contract" in violation of the Statute of Frauds (Ill. Rev. Stat. 1975, ch. 59, par. 2) was granted with prejudice on July 31, 1981 and this appeal followed.

OPINION

• 1 Specific performance is an equitable remedy in which the court orders a party to perform his contractual obligations. (Powell v. Huey (1908), 145 Ill. App. 477, aff'd (1909), 241 Ill. 132, 89 N.E. 299.) But the courts will not order specific performance of an agreement for the sale of real estate unless there is a valid, binding, complete, and definite contract which includes the names of the vendors and vendees, an adequate description of the property and the terms of the sale. Joseph v. Evans (1930), 338 Ill. 11, 170 N.E. 10; Bliss v. Rhodes (1978), 66 Ill. App.3d 895, 384 N.E.2d 512; McDaniel v. Silvernail (1976), 37 Ill. App.3d 884, 346 N.E.2d 382; Pocius v. Fleck (1958), 13 Ill.2d 420, 150 N.E.2d 106.

Thus, it is clear that plaintiffs must allege the existence of a valid and enforceable written or oral contract before the remedy of specific performance may be granted.

Initially, we consider whether plaintiffs have alleged the existence of a written contract. Ordinarily, if the clear intent of the parties is that neither will be legally bound until the execution and delivery of a formal agreement, then no contract comes into existence until such execution and delivery. Restatement (Second) of Contracts, Explanatory Notes sec. 27, comments a and b, at 78-79 (1979); Brunette v. Vulcan Materials Co. (1970), 119 Ill. App.2d 390, 256 N.E.2d 44.

This legal principle is applied even more strongly to contracts for the sale of land. The Statute of Frauds *fn1 requires that a contract to convey land be evidenced by a writing signed either by the parties to be charged (Uscian v. Blacconeri (1975), 35 Ill. App.3d 80, 340 N.E.2d 618) or by some other person lawfully ...


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