Brunette v. Vulcan Materials Co.
| Decision Date | 15 January 1970 |
| Docket Number | No. 1220,D,Gen. No. 53467,1220 |
| Citation | 256 N.E.2d 44,119 Ill.App.2d 390 |
| Parties | Le Roy BRUNETTE and Walter C. Franke, Plaintiffs-Appellants, v. VULCAN MATERIALS COMPANY, a corporation; Conlon-Collins, Inc., a corporation; Charles A. Benson and Home State Bank of Crystal Lake, as Trustee under Trustefendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Paul M. Lurie, Chicago, for appellants, Fohrman & Lurie, Chicago, of counsel.
Frank M. Covey, Jr., McDermott, Will & Emery, Chicago, for appellees.
Plaintiffs seek to obtain specific performance of an alleged contract to convey a parcel of real estate or in the alternative to recover damages for breach of contract. Defendants moved to dismiss the suit pursuant to Sections 45 and 48 of the Civil Practice Act (Ill.Rev.Stat., ch. 110, §§ 45, 48 (1967)). As to Section 45 defendants contend that the complaint does not state a cause of action and as to Section 48, that the claim is barred by the Statute of Frauds. The trial court sustained defendants' motion and dismissed the suit and plaintiffs have appealed. The facts follow.
In 1956 plaintiffs purchased from Consumer's Company, the predecessor firm of Vulcan Materials Company, a five acre parcel of real estate in McHenry County, Illinois. Plaintiffs allege that Consumer's agent agreed orally to give them priority over other purchasers when and if the defendants decided to sell an adjacent parcel of land consisting of approximately 8.5 acres, and it is this land which is the subject matter of the present litigation. Plaintiffs operated a successful glazing and glass business on the land they had purchased in 1956 and by 1964 required expanded facilities. To fulfill this need they began negotiations for the purchase of the adjacent tract owned by Vulcan and they alleged that in March 1965 an agreement was reached. As evidence of that agreement plaintiffs offer two letters to them from Vulcan, one dated February 10, 1965, and the other dated March 16, 1965. Defendants' letter of February 10th suggested terms for the sale of the land and closed with the following:
Plaintiffs' response dated February 19, 1965 contained this passage:
'Terms would be $3000.00 earnest money payable upon approval of the sale by your staff, an additional $14,000 in cash Upon acceptance by your Board and execution of Articles of Agreement, and payment of the balance in three equal annual installments at 6% Interest on the unpaid balance * * *.' (Emphasis added.)
In a letter from Vulcan to plaintiffs dated March 16, 1965 the following pertinent passages appear:
'In reply to your letter of February 19, 1965, our management is In substantial agreement to submit to our Board of Directors for its approval the sale of property owned by us adjacent to your company at Crystal Lake. The property they Will recommend for sale is between your property and Switzer Boat Co. Subject to the drafting of an acceptable contract, we feel it would be possible for you to raze, repair or remove * * *.
If the above is agreeable, please notify us, and we will proceed to draft the contract.' (Emphasis added.)
The reply which defendants contemplated came in a letter dated July 26, 1965 signed by Brunette on behalf of plaintiffs. In that letter plaintiffs informed Vulcan of the exact acreage as found by the survey they had taken and then stated:
'I suggest $13,500.00 cash (about 29%) and the balance at 6% In three equal annual installments. Since the land is not on the Assessor's books as a separate parcel, and since most of the year Will be gone before this matter is consummated, I suggest you pay '65 taxes.
Kindly call to arrange a meeting for the purpose of drafting an agreement.' (Emphasis added.)
Plaintiffs' amended complaint states in paragraph 9 that 'On or about March 16, 1965, it was agreed between plaintiffs and Dwyer (defendants' agent) that Vulcan would sell Parcel A (the subject matter of this suit) to plaintiffs. * * *' It thus appears that plaintiffs considered the March 16th letter the basis for the existence of a contract.
The correspondence hereinbefore set forth contains repeated references to the preparation of a formal contract setting forth the terms of conveyance. Plaintiffs in their letter dated February 19, 1965 unequivocally make acceptance by Vulcan's Board of Directors and the execution of 'Articles of Agreement' conditions precedent to the payment of the $14,000 cash down payment. When Vulcan responded to that letter on March 16, 1965 the conditional nature of these negotiations was again emphasized both as to the organizational requirement that the Vulcan Board of Directors approve the sale as well as the need for the drafting of an acceptable contract. Finally, on July 26, 1965 plaintiffs' own letter unmistakably characterizes the correspondence as preliminary. That letter speaks In futuro of when the matter will be 'consummated' and closes with a request for a meeting so that an agreement can be drafted. Taken cumulatively, these statements characterize the letters as mere steps in a chain of negotiations and the law applicable thereto is clear.
Where the reduction of an agreement to writing and its formal execution is viewed by the parties as a condition precedent to the vesting of rights and duties, there can be no contract until then, even if the actual terms have been agreed upon. Baltimore & Ohio S.W.Ry. Co. v. People ex rel. Allen, 195 Ill. 423, 63 N.E. 262; Calo, Inc. v. AMF Pinspotters, Inc., 31 Ill.App.2d 2, 176 N.E.2d 1; Stephens v. Nixon, 338 Ill.App. 275, 86 N.E.2d 278.
We proceed to consider the propriety of the court's order sustaining defendants' motion to dismiss the suit pursuant to the provisions of Section 45 of the Civil Practice Act. If an essential and material allegation of fact is absent, the complaint may be dismissed. Byron v. Byron, 391 Ill. 256, 62 N.E.2d 790. In the case before us the bare allegation set out in paragraph 9 of the amended complaint is a conclusion based on insufficiently pleaded facts. There is no allegation of offer or acceptance by either party unless we accept plaintiffs' view that the correspondence should be so construed. Since as we have hereinbefore concluded, the letters all look forward to and are contingent upon the execution of a formal contract, they cannot be considered as an offer or acceptance. Any agreement derived from such correspondence is clearly an agreement only as to possible terms and not an agreement to sell. The former represents the typical negotiation process, whereas the...
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