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Loeb v. Gray

OPINION FILED FEBRUARY 27, 1985.

HERMAN L. LOEB ET AL., PLAINTIFFS-APPELLANTS,

v.

WILMA GRAY ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of White County; the Hon. Leo Desmond, Judge, presiding.

PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

The plaintiffs, Herman and Betty Loeb, appeal the dismissal with prejudice of their amended complaint in an action for reformation of a contract for the sale of real estate and for specific performance of the contract as reformed. We affirm.

In their complaint, which was verified, the plaintiffs sought specific enforcement by the defendants Wilma Gray and Leah Cornwell of an alleged contract for the sale of real estate. The complaint was in four counts, in the others of which the plaintiffs sought from certain other of the defendants an accounting for oil and gas produced from the premises, from the defendants Gray and Cornwell damages in the amount of $1,000,000, and from the defendant Sohio Supply Company the impoundment of all funds representing the proceeds of the sale of oil and gas produced from the premises. Attached to the complaint as exhibit A was the "Real Estate Listing Agreement," a form signed by the defendants Gray and Cornwell as owners and Hugh B. Miller for Curran Miller Auction and Realty, Inc., the realtor. The real estate listing agreement was entered into on October 10, 1980. Under the real estate listing agreement the owners granted to the realtor the sole and exclusive right to sell the real estate in question for a period of three months following the date of the agreement and agreed, among other things, to pay the realtor a commission of 6% of the sale price. After the printed words "Mineral Rights" on the real estate listing agreement, the following appears in handwriting: "The sellers shall reserve 1/4 of the mineral rights to each seller for their [sic] natural lifetime."

Attached to the complaint as exhibit B is the "Real Estate Purchase Agreement," also a form, signed by Herman Loeb as "Purchaser." Paragraph 12 of the real estate purchase agreement states as follows:

"Acceptance: This offer shall remain open for acceptance by the Owners, by their signatures affixed hereto, at or prior to 12:00 o'clock, noon, on the 25 day of October 1980. If accepted within such time, this agreement shall be in full force and effect."

The real estate purchase agreement was executed by the "Purchasers" on October 11, 1980.

Paragraph 14 of the real estate purchase agreement provides "FURTHER CONDITIONS" as follows:

"Sellers, Wilma Gray and Leah Cornwell, each respectively reserves for herself, for and during the period of her natural life, an undivided 1/4 interest in and to the oil, gas and other minerals, in, under and that may be produced from the above lands, subject to any rights now or hereafter existing in and to any lessee or assignee under any valid and subsisting oil and gas lease heretofore or hereafter executed. Purchaser shall have full power and authority to lease all of said lands for oil, gas and other minerals, and Sellers' signatures shall not be required to effect said leases. 1980 taxes due and payable in 1981 shall be deducted from the purchase price to be paid by Sellers for said premises, the deduction to be estimated on the basis of 1979 taxes paid in 1980." (Emphasis added.)

The realtor's signature appears beneath the following words on the real estate purchase agreement:

"RECEIPT BY REALTOR:

I, hereby, acknowledge receipt of deposit of $25,000.00 in CASH - Check."

At the bottom of the real estate purchase agreement appear these typewritten words: "SUBJECT TO THE TERMS, CONDITIONS AND MODIFICATIONS SET FORTH IN THE ADDENDUM ATTACHED HERETO." Beneath these typewritten words are the printed words, with the date supplied in handwriting: "ACCEPTED by Owners, this 21st day of October 1980." Beneath appear the signatures of Leah Cornwell and Wilma Gray, each as "Owner."

Attached to the complaint as exhibit B-1 is the "ADDENDUM TO REAL ESTATE PURCHASE AGREEMENT." The addendum states, "This Addendum to that certain Real Estate Purchase Agreement dated October 11, 1980, executed by Herman L. Loeb shall constitute the acceptance by the undersigned of the terms and conditions of said Real Estate Purchase Agreement subject to the following terms, conditions and modifications," paragraph four of which provides:

"Paragraph 14 shall be modified and clarified as follows:

Sellers Wilma Gray and Leah Cornwell each respectively reserves for herself, for and during the period of her natural life an undivided one-quarter (1/4) interest each in and to the oil, gas and other minerals in, under and that may be produced from the subject property. Sellers shall each respectively be entitled to, for and during the period of her natural life, one-quarter (1/4) of all proceeds received by lessor of the subject property pursuant to existing and future oil and gas leases. In the event that Purchaser produces oil or gas directly rather than under lease, Sellers shall each respectively, for and during the period of her natural life, receive one-quarter (1/4) of the gross proceeds derived therefrom. All payments shall be made quarterly and Purchaser shall furnish with each of said payments an accounting for the manner in which the amount of said payment is determined. Purchaser shall have full power and authority to lease all of said lands for oil, gas and other minerals and Sellers' signatures shall not be required to effect said leases. 1980 taxes due any payable in 1981 shall be deducted from the purchase price to be paid by Sellers for said premises, the deduction to be estimated on the basis of the 1979 taxes paid in 1980. In the event that the ...


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