Cities Service Oil Co. v. Viering, 31236

• Decision Date: 22 November 1949
• Docket Number: No. 31236,31236
• Citation: 404 Ill. 538,89 N.E.2d 392,13 A.L.R.2d 1448
• Parties: , 13 A.L.R.2d 1448 CITIES SERVICE OIL CO. v. VIERING.
• Court: Illinois Supreme Court

Page 392

89 N.E.2d 392

404 Ill. 538, 13 A.L.R.2d 1448

CITIES SERVICE OIL CO. v. VIERING.

No. 31236.

Supreme Court of Illinois.

Nov. 22, 1949.

Rehearing Denied Jan. 12, 1950.

Sheldon & Brown, and Alexander L. Haglund, both of Sterling, for appellant.

Besse & Besse, of Sterling (Kennard J. Besse, and L. Vernon Frye, Sterling, of counsel), for appellee.

THOMPSON, Chief Justice.

This is an appeal from a decree entered by the circuit court of Whiteside County in favor of appellee, Cities Service Oil Company, a corporation, in a suit filed by it against E. F. Viering, the appellant, to compel the conveyance of certain real estate in the city of Rock Falls in that county, upon which said real estate it was alleged he had given appellee a legal option to purchase contained in a lease of the premises.

The complaint alleged that defendant was, and is, the owner of the property; that on May 2, 1939, plaintiff and defendant entered into a written agreement whereby the defendant leased the premises to plaintiff for a term of six years with an option of extending the term for an additional period of five years; that the lease contained a clause giving plaintiff the option of purchasing the demised premises for $10,000 at any time during the term of the lease; that plaintiff exercised its option to extend the term of the lease, and on December 26, 1946, by written notice, a copy of which was attached to the complaint marked Exhibit 'C,' exercised its option to purchase the property for $10,000; that plaintiff had been, and still is, ready, willing and able to perform on its part the contract arising out of its exercise of the option, but that defendant refused, and continues to refuse, to convey the premises. There was attached to the complaint, as Exhibit 'A,' a photostatic copy of the lease, the first paragraph of which was as follows:

'This lease and agreement is made in duplicate by E. F. Viering and who may be addressed at 304 Second Ave., Rock Falls, Illinois, herein referred to (whether one or more) in the masculine singular as Lessor, jointly and severally with Cities Service Oil Company, a Delaware Corporation, which may be addressed at its Division Office at 3200 So. Western Ave., Chicago, Illinois, herein call Lessee, in consideration of the mutual covenants hereof, upon the following terms and conditions, to-wit:'

The lease, as appears from this exhibit, was signed by defendant, but not signed by his wife. The prayer of the complaint, as by leave of court amended, asked that defendant be ordered to specifically perform the contract by executing and delivering to the plaintiff a warranty deed conveying the premises and delivering to plaintiff an abstract of title showing merdhantable title in defendant.

Defendant answered denying he leased the premises for a term of six years with an option to extend the lease for a term of five years and denying that he granted plaintiff an option to purchase the premises for $10,000. He admitted his ownership of the leased premises and admitted that he signed the lease, but stated that when he did so the words 'and Hazel O. Viering (his wife)' were not then crossed out. He further stated that Hazel O. Viering was then his wife and then had and still has a contingent right of dower in the premises; that after he had signed the lease in which his wife was named as one of the lessors, his wife's name was, without his consent, crossed out of the lease; and that when plaintiff crossed out the lease the words 'and Hazel O. Viering (his wife)' it knew that Hazel O. Viering was his wife, knew that she refused to sign the lease, knew that she was a party thereto and knew that she would not sign the deed, and that by reason thereof the said lease was not a valid and enforceable agreement between plaintiff and defendant. The answer avers that the lease is void for uncertainty, that it is void because it is incomplete and shows on its face there were other parts to said alleged agreement which are not made a part thereof, that it is void and unenforceable as to the purported option to purchase for the reason that there is no consideration for the option, and that the lease contains two purported options to purchase, both of which are void because contradictory and conflicting and are fraudulent in that defendant did not understand that he was thereby prevented from selling the property for more than $10,000. The answer further alleges that plaintiff has never tendered payment of the sum of $10,000, and therefore has failed to comply with the requirements of the purported option giving him the right to purchase the premises for $10,000, that plaintiff has waived and lost its option to purchase by laches and delay, and that defendant on January 4, 1947, by written notice, a copy of which was attached to the answer, marked defendant's Exhibit 'I,' terminated the option to purchase for $10,000.

Plaintiff filed a reply admitting the receipt of defendant's Exhibit 'I,' but denying all other allegations of the answer, and averring that between the time plaintiff elected to exercise the option to purchase and the time of filing the instant suit there were continuing negotiations between the parties concerning the exercise of the option and the conveyance of the property.

After the filing of the reply, the defendant thereupon, without obtaining permission of the court, filed a further pleading, designated as the reply of defendant to the reply of the plaintiff to defendant's answer. By this pleading he admitted the negotiations between the parties, but averred that the same are immaterial and that no settlement was accomplished thereby.

After a hearing before the chancellor, a decree was entered, ordering defendant to execute and deliver to the plaintiff a warranty deed, conveying the premises to the plaintiff, and also to deliver to plaintiff an abstract showing the title to the premises to be merchantable in the defendant, and further directing that plaintiff pay the defendant $10,000 therefor. Defendant prosecutes a direct appeal, a freehold being necessarily involved.

It is appellant's contention (a) that plaintiff by the alteration of the lease waived the option to purchase contained therein; (b) that there was no consideration for said option; (c) that the option is too ambiguous to be specifically enforced; (c) that it is inequitable and contrary to the plain language of the option to require defendant to execute and deliver a warranty deed which his wife refuses to sign and is not obligated to sign; (d) that plaintiff is barred by laches from suing for specific performance; (e) that the decree should require plaintiff to pay the rent specified in the lease to the date of delivery of deed and payment of $10,000; and, (f) that the decree in ordering defendant to deliver an abstract showing merchantable title in him requires him to do something which he cannot do and which plaintiff knew that he could not do when the contract was signed and the requirement for the defendant's wife to join in the lease was deleted.

It appears from the pleadings, stipulations and evidence that it was originally contemplated by both plaintiff and defendant that defendant's wife, Hazel O. Viering, should join as a lessor in the execution of the lease; that the lease was prepared in duplicate, both copies setting out her name in the body of the instrument as one of the parties thereto, and that in such condition the two copies were signed and acknowledged by the defendant; that his wife, Hazel O. Viering, refused to sign the lease; that defendant delivered to the plaintiff the two duplicate leases, signed and acknowledged by him and with the name of his wife undeleted from the instrument as one of the parties thereto; that when the two duplicate leases were so delivered, plaintiff knew that defendant's wife would not sign the lease and therefore could not be compelled to sign a deed to the premises if plaintiff should elect to purchase the same under the option clause contained in the lease; and that plaintiff thereupon struck out of the lease the words 'and Hazel O. Viering (his wife)' and after signing the instrument returned one copy thereof, so deleted and signed by it to defendant, and retained the other copy.

The lease, at the time of its delivery to plaintiff by defendant and at the time a copy thereof was returned to him by the plaintiff, contained as paragraph 9, under the heading in capital letters 'Option to Purchase' the following provision:

'Lessee shall have the option of purchasing the demised premises at any time during the term of this lease for the sum of Ten Thousand and no/100 dollars. Lessee shall also have the option of purchasing the demised premises at any time during the term of this lease at such price and terms which Lessor, as often as he is desirous of selling, may obtain from a bona fide purchaser ready, able and willing to buy, said option to be exercised within fifteen days after written notice to Lessee of the terms of such sale so available and desired, and the prospective purchaser. Exercise of any such option shall create a contract of sale; and Lessor shall promptly furnish to Lessee abstract of title certified to the then date, showing to the satisfaction of Lessee's counsel merchantable title in Lessor; or at Lessee's option, if available, title guaranty policy to the amount of the purchase price, and shall make appropriate conveyance by deed, with joinder of spouse, if any, and with usual covenants of warranty.'

This paragraph was never, at any time, stricken from the lease either by defendant or plaintiff. Defendant contends, however, that it was rendered inoperative by his delivery to plaintiff of the lease signed only by himself, with his wife's name therein as one of the parties, and at the same time informing plaintiff that his wife would not sign. He also contends that plaintiff's action in thereafter crossing the wife's name out of the...