Guel v. Bullock

• Decision Date: 28 August 1984
• Docket Number: No. 83-55,83-55
• Citation: 468 N.E.2d 811,82 Ill.Dec. 264,127 Ill.App.3d 36
• Parties: , 82 Ill.Dec. 264 David GUEL, Plaintiff-Appellant, v. Karey C. BULLOCK, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 811

468 N.E.2d 811

127 Ill.App.3d 36, 82 Ill.Dec. 264

David GUEL, Plaintiff-Appellant, v. Karey C. BULLOCK, et al., Defendants-Appellees.

No. 83-55.

Appellate Court of Illinois First District, Second Division.

Aug. 28, 1984.

Albert Brooks Friedman, Ltd., Frederick M. Ellis, Jr., Chicago, of counsel, for plaintiff-appellant.

Hopkins & Sutter, Elvin E. Charity, Chicago, of counsel, for defendants-appellees.

STAMOS, Justice:

Plaintiff David Guel sought specific performance of a contract to purchase real estate. Named as defendants were the owner of the property in issue, Karey C. Bullock, and Joseph and Shou-Mei Morris, the ultimate purchasers of the property. Defendants filed a motion for summary judgment which was granted and plaintiff appeals.

On February 6, 1982, plaintiff and defendant Karey Bullock entered into a contract to purchase real estate owned by Bullock. The contract described the property as "8427 S. Euclid." The contract provided that plaintiff would pay $5,500, assume the mortgage on the property, and pay all back taxes which were due. The agreement designated plaintiff as the purchaser and Bullock as the seller and it was signed by Bullock and plaintiff's agents.

On February 24, 1982, plaintiff received a letter from Bullock's attorney stating that Bullock was rescinding the contract to purchase. This letter was signed by Bullock's attorney. Thereafter, Bullock sold his property to Joseph and Shou-Mei Morris for $8,000 under the same conditions contained in the agreement between plaintiff and Bullock. Plaintiff then sued for specific performance of the contract.

In his amended complaint, plaintiff contended that by reading the February 6 contract in conjunction with the February 24 letter of rescission, the essential elements for specific performance of the contract could be found. Defendants filed a motion for summary judgment on the grounds that the contract in issue failed to comply with the statute of frauds. The trial court granted the motion for summary judgment on the grounds that the contract failed to comply with the statute of frauds and because it appeared that plaintiff was not ready, willing and able to perform the terms of the contract. Plaintiff then instituted this appeal.

Plaintiff first contends that the trial court erred in concluding that the contract in issue did not comply with the requirements of the statute of frauds.

In Illinois, no action on a contract for the sale of an interest in land may be brought unless the contract is in writing and signed by the party to be charged. (See Ill.Rev.Stat.1981, ch. 59, par. 2.) For a court to decree specific performance of a contract to convey real estate, the contract must be "definite and certain in its terms and conditions, contain the names of the vendor and vendee, a description of the property sufficient to identify it, the price, the terms and conditions of sale together with the signatures of the parties to be charged." (Pocius v. Fleck (1958), 13 Ill.2d 420, 427, 150 N.E.2d 106.) This appeal turns on the degree of specificity required by the statute of frauds.

The contract in issue provides as follows:

"February 6, 1982

Seller agrees to sell and buyer agrees to buy on an assumption of the present mortgage of the property commonly known as 8427 S. Euclid. Buyer will pay on closing the sum of five thousand five hundred dollars in cash. Buyer will pay all closing costs (excepting sellers attorney fees) and will assume all past due mortgage payments and real estate taxes.

This agreement subject to a title search to disclose any hidden liens, judgments or claims on the property.

This agreement is also subject to the mortgagee (Bell Federal) accepting the assumption."

The first ambiguity noted by defendants and the primary point of contention is the contract's failure to designate what city and state the property is located in. Plaintiff asserts that this defect is remedied by the letter of February 24, 1982, from Bullock's attorney to plaintiff. In that letter, Bullock's attorney acknowledged the existence of the contract for the sale of "8427 S. Euclid, Chicago, Illinois" and then proceeded to serve notice that that contract was being rescinded. Plaintiff asserts that when the letter of February 24, 1982, is read in conjunction with the contract of February 6, 1982, a property description which satisfies the statute of frauds results.

The difficulty with this approach is the fact that the letter of February 24, 1982, was signed only by the attorney, and not by the "party to be charged" (Bullock), and is therefore not binding on Bullock. Plaintiff argues that the attorney was Bullock's agent and that the letter does bind Bullock. However, an attorney who is employed to provide advice with respect to a real estate transaction is not authorized to act as his client's agent except as specifically authorized. (See Lanski v. The Chicago Title and Trust Co. (1927), 324 Ill. 367, 373, 155 N.E. 296.) The specific authority to bind a client must be in writing where an interest in realty is at issue. McMillan v. Ingolia (1980), 87 Ill.App.3d 727, 730, 43 Ill.Dec. 162, 410 N.E.2d 162.

In the instant case, in support of defendants' motion for summary judgment, Bullock submitted an affidavit in which he stated that he did not authorize anyone to act as his agent with respect to the real estate transaction in issue. Plaintiff did not file a counter-affidavit contradicting this statement and the court was therefore bound to accept it as true. (See Mutschler Kitchens of Chicago, Inc. v. Wineman (1981), 95 Ill.App.3d 728, 734, 51 Ill.Dec. 258, 420 N.E.2d 672.) Thus, the trial court correctly disregarded the letter of February 24, 1982, in ruling on the motion for summary judgment.

Without the letter of February 24, the description of the property in issue is that provided in the contract: "8427 S. Euclid." Defendants cite Crocker v. Smith (1937), 366 Ill. 535, 9 N.E.2d 309, for the proposition that the failure to specify the county or state of the subject property in a contract to purchase real estate renders the contract unenforceable under our statute of frauds. But the failure to specify the county or state was only one of several reasons cited by the court in Crocker in support of its finding that the contract in issue could not be specifically enforced. (See 366 Ill. 535, 537, 9 N.E.2d 309.) If the omission of the county or state from the property description had been the only ambiguity in the contract, it is not apparent that the court would have held the contract to be unenforceable as a matter of law. See Ullsperger v. Meyer (1905), 217 Ill. 262, 264, 266, 75 N.E. 482; Gage v. Cameron (1904), 212 Ill. 146, 173, 72 N.E. 204.

Under the statute of frauds in this State, parol evidence may be used to clarify the terms of a written contract. (See Callaghan v. Miller (1959), 17 Ill.2d 595, 599, 162 N.E.2d 422; Werling v. Grosse (1979), 76 Ill.App.3d 834, 841, 32 Ill.Dec. 399, 395 N.E.2d 629.) This is not to say that parol evidence may be used to supply missing terms. Only when the contract itself evinces the fact that the parties intended to be bound and that they agreed on the essential terms may parol evidence be introduced. See Corbin, Contracts, sec. 499, at 689 (1950).

In order to be enforceable under our statute of frauds, a contract for the sale of land must contain: (1) a description of the property which is sufficiently certain so that it can be identified; (2) the price, the terms and conditions of sale; (3) the names of the vendor and vendee; and (4) the signature of the party to be charged. McDaniel v. Silvernail (1976), 37 Ill.App.3d 884, 886, 346 N.E.2d 382. In the instant case it is apparent that the parties entered into the agreement in issue intending to be bound and that they came to an agreement as to the essential terms. Defendant does not refute this. Rather, defendant claims that the written contract is not detailed enough to be enforceable.

Clearly, a contract need not provide for every contingency to be enforceable under the statute of frauds. (See Shugan v. Colonial View Manor (1982), 107 Ill.App.3d 458, 465, 63 Ill.Dec. 62, 437 N.E.2d 731.) If it is apparent from the writing that a term has been agreed upon, parol evidence may be introduced to clear up any ambiguity. See e.g. Callaghan v. Miller (1959), 17 Ill.2d 595, 599, 162 N.E.2d 422; Werling v. Grosse (1979), 76 Ill.App.3d 834, 841, 32 Ill.Dec. 399, 395 N.E.2d 629; Bliss v. Rhodes (1978), 66 Ill.App.3d 895, 897-98, 23 Ill.Dec. 718, 384 N.E.2d 512; see also Corbin, Contracts, sec. 499, at 689 (1950).

In the instant case, defendant argues that the property description in the contract ("8427 S. Euclid") is too ambiguous to enforce. But by resorting to parol evidence, plaintiff may be able to establish that defendant Bullock has an interest in only one parcel of real estate which is designated as "8427 S. Euclid" and that that parcel is located in Chicago, Illinois. (See Bliss v. Rhodes (1978), 66 Ill.App.3d 895, 897, 23 Ill.Dec. 718, 384 N.E.2d 512.) If plaintiff was given an opportunity to present such evidence, it would be readily apparent that there was no other parcel of real estate to which the contract could apply. See e.g. Callaghan v. Miller (1959), 17 Ill.2d 595, 599, 162 N.E.2d 422; Werling v. Grosse (1979), 76 Ill.App.3d 834, 841, 32 Ill.Dec. 399, 395 N.E.2d 629; Bliss v. Rhodes (1978), 66 Ill.App.3d 895, 897-98, 23 Ill.Dec. 718, 384 N.E.2d 512; see also Corbin, Contracts, sec. 505, at 719 (1950).

In the instant case, the trial court granted defendants summary judgment because of the insufficiency of the written contract. But summary judgment should not be granted unless it is apparent that no set of facts can be proven to sustain the cause of action. (Golden Rule Life Ins. Co. v. Mathias (1980), 86 Ill.App.3d 323, 332, 41 Ill.Dec. 808, 408 N.E.2d 310.) Under the above analysis concerning the sufficiency of the...