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03/18/87 Larry Alguire, v. John W. Walker Et Al.

March 18, 1987





506 N.E.2d 1334, 154 Ill. App. 3d 438, 107 Ill. Dec. 279 1987.IL.328

Appeal from the Circuit Court of Cook County; the Hon. Joseph M. Wosik, Judge, presiding.


JUSTICE RIZZI delivered the opinion of the court. McNAMARA, P.J., and WHITE, J., concur.


Plaintiff, Larry Alguire, brought this action for specific performance and other relief against defendants John W. Walker and Walker Equipment and Supply Company. Following a bench trial, the trial court entered judgment in favor of Alguire in the amount of $471,497, including prejudgment interest. The court also awarded Alguire $15,000 in punitive damages. On appeal defendants contend that the trial court's judgment in favor of Alguire was against the manifest weight of the evidence, as were the awards of $471,497 in damages and $15,000 in punitive damages. We affirm in part, modify in part, and reverse in part.

Walker is the president and sole shareholder of Walker Equipment and Supply Company, which sells, rents, and repairs construction equipment. Sometime between November 1980 and early January 1981, Walker agreed to demolish five block barn buildings on Washington Park Race Track for Providence Capital Realty Group.

In early January 1981, Alguire contacted Walker because he was interested in buying land which Walker owned. Alguire wanted the property so that he could erect a building in which to store the equipment that he used in his tree trimming and removal service. At their first meeting, Walker indicated that the land he owned was divided into 10 lots that were approximately one acre in size. Alguire testified that Walker stated a price of $10,000 per acre. Walker testified that he asked for $15,000 per acre. The parties went to view the land, and Alguire indicated that he would be interested in the two back lots, although he was seeking a better price. According to Alguire, Walker indicated the two lots with his arm.

Either at the first or second meeting between Alguire and Walker, Walker mentioned to Alguire the five buildings that he had agreed to dismantle and salvage. Walker told Alguire that if he was interested in the project, they could work something out. After Alguire inspected the buildings, he and Walker met to discuss the terms pursuant to which Alguire would undertake the project. An oral agreement was reached, of which most of the terms are undisputed. Specifically, the parties agreed that (1) Alguire would provide the labor, including his own time, to dismantle the five buildings; (2) Walker Equipment and Supply Company would provide the equipment necessary for the job; (3) the parties would split the net proceeds from the sale of the salvaged building parts, after all the costs relating to the project had been paid; and (4) Alguire and Walker would each receive one of the two structural steel buildings which were being dismantled. The parties disagreed as to whether Walker's property was part of the deal. Alguire testified that he was to receive the two acres of property which he had discussed with Walker when they first met. Walker denied in his testimony that the property was part of the agreement. The parties also disputed whether a time limit had been made a condition of the agreement. According to Walker, he informed Alguire that Providence Capital Realty Group wanted the job done in 90 days. Alguire denied that any time limit was set.

Alguire began the demolition work on January 17, 1981. Towards the end of January, Alguire and Walker went to see Walker's accountant, Jeffrey Wadley, to discuss a written agreement. Wadley advised the men to get liability insurance and to have an attorney draw up a joint venture or partnership agreement. Alguire testified that when he mentioned the two acres of land, Wadley said that there was a problem because Walker was buying the land on an installment contract. Wadley, when he testified, did not recall any conversation regarding property, and Walker denied that property was discussed with Wadley. Subsequently, Alguire and Walker met with Walker's attorney, who prepared a joint venture agreement. According to Alguire, after looking over the agreement, he complained to Walker that the agreement did not mention the property, and Walker responded that there was a problem with the land but that he would take care of it. Walker denied that this exchange took place.

Thereafter, Walker spoke to his insurance agent regarding insurance for the project. Walker learned that his current liability insurance would not extend to the project if the project were in the form of a joint venture or partnership. The additional premium to bring the project within coverage would have been $10,000. The parties agreed that they did not wish to incur this additional expense.

On May 27, 1981, Alguire and Walker had a meeting. Alguire testified that Walker asked him how much longer the project would take, and he responded that there were only two or three days of work left. Alguire stated that he complained to Walker that the project was almost completed, yet they still did not have a written agreement. Alguire informed Walker that until there was a written agreement, "[he had] a mind of keeping the material." The following day, May 28, Walker came by the site and gave Alguire a letter terminating him from the project. When Alguire demanded a reason for the termination, he was told that the job was not being completed quickly enough. Alguire stated that there had been no prior complaints about his work pace. Walker testified that beginning in April, he had repeatedly expressed concern to Alguire regarding the slow progress of the work. Walker testified that Terry Zona, Providence Capital Realty Group's agent who had alerted Walker to the demolition project and who worked at Washington Park, had previously stated his dissatisfaction with the progress of the demolition. Walker further testified that in May, Zona threatened to bulldoze the two steel structures which were still standing if they were not immediately dismantled. In his testimony, Zona admitted making these statements to Walker. According to Walker, it took 11 days to complete the demolition and salvage work after Alguire was removed from the project.

The first issue we address is whether the trial court erred in finding that there was an enforceable agreement regarding the two acres of land. Alguire initially sought specific performance of the conveyance. Rather than granting Alguire specific performance, the trial court awarded him $20,000 as damages. According to defendants, the evidence was insufficient to remove the oral agreement to convey from the Statute of Frauds, and the trial court erred in compensating Alguire for this portion of the alleged agreement.

Generally, an oral contract to transfer real estate is unenforceable under the Statute of Frauds (Ill. Rev. Stat. 1979, ch. 59, par. 2). Such contracts may be specifically enforced in equity, however, if the court finds that the terms of the contract are clear, definite, and unequivocal, that the contract has been at least partially performed by the party seeking to have the contract enforced, and that the acts allegedly done in performance are positively attributable exclusively to the contract. (Intini v. Marino (1983), 112 Ill. App. 3d 252, 256, 445 N.E.2d 460, 464.) Moreover, it must appear that the promisee cannot be made whole by damages or by other adequate remedy at law. (See Wessel v. Eilenberger (1954), 2 Ill. 2d 522, 527, 119 N.E.2d 207, 210.) The burden is upon the party seeking the application of equitable principles to defeat the interposition of the Statute of Frauds not only to ...

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