Hunter v. DeMay

• Decision Date: 28 May 1970
• Docket Number: Gen. No. 69--74
• Citation: 259 N.E.2d 291,124 Ill.App.2d 429
• Parties: William HUNTER, Plaintiff and Counter-Defendant Appellee, v. Thomas DeMAY, Defendant-Counter-Plaintiff and Third-Party Plaintiff-Appellant, v. Paul F. BLACKWELL, Third-Party Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 291

259 N.E.2d 291

124 Ill.App.2d 429

William HUNTER, Plaintiff and Counter-Defendant Appellee, v. Thomas DeMAY, Defendant-Counter-Plaintiff and Third-Party Plaintiff-Appellant, v. Paul F. BLACKWELL, Third-Party Defendant-Appellee.

Gen. No. 69--74.

Appellate Court of Illinois, Second District.

May 28, 1970.

Gordon & Brustin, Chicago, for appellant.

David G. Mountcastle, Wheaton, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, for appellee.

DAVIS, Presiding Justice.

This action for specific performance of a real estate sales contract was commenced by William Hunter, the buyer, against Thomas DeMay, the seller, to compel DeMay to convey approximately 11 1/4 acres of land to him. DeMay filed an answer and counterclaim against Hunter, which alleged that he had been fraudulently induced to sign the contract by Paul F. Blackwell, a real estate agent, who, DeMay alleged, was acting as agent for Hunter in the transaction. DeMay, in the capacity of a third-party plaintiff, also sued Blackwell and alleged that the contract provided that DeMay was to pay Blackwell a commission for the sale; that by virtue of said provision, Blackwell was DeMay's agent, and that, therefore, Blackwell should be required to indemnify DeMay for any monetary loss he would suffer were specific performance to be decreed.

Hunter filed a reply denying the affirmative allegations of the plaintiff's answer, and an answer to the counterclaim which denied the allegations therein made. Blackwell filed a counterclaim against DeMay for real estate commissions, the allegations of which DeMay denied.

After hearing the cause, the trial court entered an order decreeing specific performance of the contract, granting judgment for Blackwell on his counterclaim, and further, granting judgment for Hunter and Blackwell on DeMay's counterclaim and third-party complaint respectively. Subsequently, the will of Marie DeMay, the deceased wife of the defendant, was admitted to probate; and DeMay was enjoined from filing a renunciation of the will. DeMay appealed to this court, and asked that we reverse the order of the trial court and enter judgment in his favor on all issues.

In 1963, DeMay and his wife executed an exclusive sales contract for ninety days for the land which is the subject of this lawsuit. Blackwell was their agent under this agreement. The contract set forth the purchase price as $77,000. No sale was made and the agreement expired by its terms.

Marie DeMay died in 1965, and at that time she held the fee title to the real estate. She left a will which devised said real estate to her husband, Thomas DeMay; and the remainder of her estate to their seven children.

In August of 1967, Blackwell approached DeMay with an offer to purchase the property for $50,000. This offer contained no reference to the acreage of the property, but described it by metes and bounds. at that time DeMay had personally been trying to sell 8 1/2 acres of this property and, according to his testimony, he had a 'for sale' sign to this effect at the entrance of the property. DeMay indicated the he understood Blackwell's offer to be for 8 1/2 acres. The offer was rejected in the form of a counteroffer which DeMay made by making certain changes on the face of the offer. The counteroffer was rejected by Hunter, who had made the original offer.

Blackwell presented another offer to purchase to DeMay, wherein the sale price was $65,000. According to Blackwell, the sale price was changed to $74,000, at DeMay's request. This price was accepted by Hunter. Blackwell was present when DeMay executed the agreement, which included a rider, wherein the property was legally described without any reference to its acreage. Blackwell testified that DeMay looked over the offer for forty-five minutes before signing it, although Blackwell could not testify that DeMay was then reading it. Later, Hunter signed the agreement.

DeMay, on the other hand, testified that he always intended and understood that the sale was to be for 8 1/2 acres, and that he intended to retain the 2 3/4 acre tract of the property upon which his home was located. He further testified that he did not read the contract because he could not read, and that he signed only because he thought he was signing an offer for 8 1/2 acres. There was a great deal of conflicting testimony in the record as to DeMay's ability or inability to read and to handle his own affairs. By his own testimony, however, it does appear that he could read, with some difficulty, and that he had managed his own affairs fairly well since his wife's death.

Specific performance of a contract to convey real estate is not a matter of absolute right, but rests in the sound discretion of the trial court. But the court has no arbitrary discretion to deny relief. Miller v. Shea, 300 Ill. 180, 184, 133 N.E. 183 (1921). The remedy may not be denied where it has been proved with a reasonable degree of certainty that there is a fair and valid contract and that the party seeking performance has offered to perform all the terms and conditions required of him. Greengard v. Bernstein, 343 Ill. 416, 419, 175 N.E. 424 (1931). However, where a contract for the sale of real estate has been entered into without misunderstanding on the part of the vendee and without misrepresentation on the part of the vendor, specific performance will be granted as a matter of right and not as a matter of discretion. Hotze v. Schlanser, 410 Ill. 265, 269, 270, 102 N.E.2d 131 (1951).

The relief of specific performance will not be granted where a contract was entered into unfairly because of the circumstances of one or more of the parties, such as where unfair advantage has been taken of the ignorance, the confidence, the friendship, the inexperience or the mental deterioration of one of the parties to a contract. (Wrobel v. Wojtasiek, 341 Ill. 330, 338, 339, 173 N.E. 348 (1930)); and where the relief would be inequitable or unconscionable, or where misrepresentations unfairness, or superior advantage were responsible for the agreement, the relief will be denied, (Schiff v. Breitenbach, 14 Ill.2d 611, 616, 153 N.E.2d 549 (1958)).

The evidence regarding DeMay's capacity to contract indicates that he was not an astute individual. It appears, however, that he was able to read, although with difficulty and that on other occasions he had the presence of mind to ask for assistance in the handling of his business affairs. The evidence in this regard, and with reference to the circumstances surrounding the actual signing of the agreement is conflicting. It seems rather obvious from the decision of the trial court, that it gave more credence to the...