Hux v. Raben
| Decision Date | 31 August 1966 |
| Docket Number | Gen. No. 65--106 |
| Citation | 74 Ill.App.2d 214,219 N.E.2d 770 |
| Parties | John D. HUX and Olga M. Hux, Husband and Wife, Plaintiffs-Appellees, v. Denis RABEN and Louella Raben, Husband and Wife, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Boswell & Boswell, Harrisburg, for appellants.
Frank Bonan, McLeansboro, for appellees.
Defendants appeal from the decree of the Circuit Court of Hamilton County ordering the specific performance of a contract for the sale of real estate.
Plaintiff, John D. Hux, is the assignee of an option to purchase the real estate involved in this litigation. On April 17, 1964, defendants, husband and wife, signed a printed form headed 'Option to Purchase Real Estate'. The instrument recites the receipt by defendants of the sum of $1,000.00, in consideration of which R. L. Merrick, described as purchaser, his heirs and assigns, are given 'the exclusive right to purchase, upon the terms and conditions hereinafter set out, on or before the 1st day of Jan. 1965', property known as the Dennis Raben farm, of 440 acres, more or less. The land is described as being in designated sections in Hamilton County, but no detailed description is set out. It is stated in the document that the price is $100,000.00, $4,000.00 to be paid June 30, 1964, 'Balance to be paid Jan. 1, 1965'.
The following provisions, among others, are included in the option:
'Dennis Raben to retain all rent from farm for 1964 as part of purchase price.'
'Dennis Raben agrees to carry 2nd Deed of Trust in the amount of $25,000.00 for 10 yrs., equal payments with 6% Interest per annum.'
Plaintiffs' complaint is in two counts; in Count I plaintiffs allege the execution of the option on April 17, 1964, and the payment of $1,000.00 on that date, the payment of $4,000.00 on June 30, 1964, and further allege that after the payment of the sums of money and the removal of the crops by defendants, defendants delivered possession of the land to plaintiffs and plaintiffs have planted 200 acres of wheat and have expended $12,989.40 for land clearing and improvements, of which defendants knew, and to which they consented. Plaintiffs further allege that they are assignees of the option, that they have performed all the conditions of the agreement by them to be performed, and that defendants have failed and refused to deliver a warranty deed to the premises.
In Count II, plaintiffs repeat the allegations of Count I, and pray for abatement of the purchase price in an amount to be fixed by the court, because of defendants' inability to deliver fee simple title, in that certain mineral rights were reserved to, and are owned by, a prior owner.
The evidence shows that Reginald L. Merrick (named as R. L. Merrick in the option), on May 14, 1964, assigned to Harold Hahn, all of his right, title and interest under the option agreement. The assignment recites a consideration of $5,000.00 payable $500.00 on May 14, 1964 and $4,500.00 on August 1, 1964. The assignee agrees therein to pay the purchase price, perform the terms and conditions of the option, and indemnify Merrick and hold him harmless from any claim arising by reason of failure to so perform. The assignment also states, 'This agreement is subject to the ability of the Second Party (the assignee) to obtain a loan from some insurance company in the sum of $150.00 per acre, with the usual provisions in the Promissory Note and Deed of Trust'.
On November 3, 1964, by written assignment, Harold Hahn and spouse assigned to plaintiff, John D. Hux all of the right, title and interest of Merrick under the option agreement. This document recites a consideration of $1.00 and other valuable considerations. It contains no indemnity agreement or provision for financing.
Merrick, called as a witness for plaintiffs, testified that he is a real estate broker and buys and sells real estate in Southern Illinois. He identified the option, and two checks evidencing the payments of April 17, and June 30, 1964. After he assigned the option to Hahn attorney, Frank Bonan, who is a lawyer and abstracter in Hamilton County. Mr. Bonan extended the abstract to date, and at the direction of Mr. Merrick, submitted it to Chicago Title & Trust Company on December 11, 1964. On December 28, 1964, Chicago Title & Trust Company sent Mr. Bonan a preliminary report of title enumerating various objections. There is no mention in the option of title insurance, nor of Chicago Title & Trust Company. The only provisions made for evidence of title are set forth in the above quoted paragraphs of the option.
On December 29, 1964, Merrick sent defendants a letter notifying them of his intention to exercise his option 'as provided in said April 17, 1964, agreement. The letter concludes with the following paragraph:
'If you will prepare the necessary documents and furnish us with an abstract of title certified to date as provided in said agreement, we shall, within 15 days after receipt thereof, be ready to close this transaction under the terms and conditions of said agreement.'
Merrick testified that he called defendant, Denis Raben, and told him there were some objections to the title. He further stated that defendants' inability to convey the whole of the mineral rights reduced the value of the land. He stated that he wrote defendant, Denis Raben, advising him of defects in the title, but the letter is not in evidence.
On January 18, 1965, Merrick delivered to Bonan a sight draft in the amount of $70,000.00, payable to defendants' order. He stated that 'the objections were cured sufficiently to be accepted by Kansas City Life Insurance Company'.
Harold Hahn, called by plaintiffs, testified that after he acquired the assignment of the option, he did some clearning during August and September, and in November he furnished the seed for the tenant, McPeak, who sowed 200 acres of wheat. Hahn asked defendants for possession of the farm by January 1, 1965, and they moved prior to that date. After his assignment to Hux 'he had nothing further to do with the transaction'. He stated that he had tried to arrange a loan from Kansas City Life Insurance Company, but did not complete the transaction.
There is no testimony that arrangements for a loan from Kansas City Life Insurance Company were completed, neither Merrick nor Hahn testified as to any amount which was to be borrwed, and there is no...
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...Nevertheless, plaintiff argues that all the terms necessary for a binding contract are present in the rider, citing Hux v. Raben (1966), 74 Ill.App.2d 214, 219 N.E.2d 770, affirmed (1967), 38 Ill.2d 223, 230 N.E.2d 831, and Chicago Investment Corp. v. Dolins (1981), 93 Ill.App.3d 971, 49 Il......
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...a definite obligation for the performance by each party thereto is incapable of remedy in equity or at law. Cf. Hux v. Raben, 74 Ill.App.2d 214, 219 N.E.2d 770, 774 (App.Ct.1966), aff'd 38 Ill.2d 223, 230 N.E.2d 831 (Sup.Ct.1967). An essential characteristic of an enforceable contract is th......
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