Koch v. Nat'l Union Bldg. Ass'n

• Decision Date: 13 May 1891
• Citation: 27 N.E. 530,137 Ill. 497
• Parties: KOCH v. NATIONAL UNION BLDG. ASS'N.
• Court: Illinois Supreme Court

137 Ill. 497

27 N.E. 530

KOCH

v.NATIONAL UNION BLDG. ASS'N.¹

Supreme Court of Illinois.

May 13, 1891.

Appeal from appellate court, first district.

Rubens & Mott, for appellant.

Hamline, Scott & Lord, for appellee.

SHOPE, J.

This is a bill for specific performance of an alleged parol contract entered into by the National Union Building Association to renew a lease for a term of years after its expiration in favor of the assignee of the unexpired term. The consideration of the alleged contract was the purchase by the complaint of the tenant's unexpired term, and his stock and fixtures as a saloon-keeper, including the good-will of the business, which it was alleged would not have been made except for the express agreement on the part of the lessor, said building association, to renew the lease, The contract is denied, as is also the authority of the president to make the same; and the statute of frauds is also set up and relied on as a defense. Complainant claims that his performance of the terms of the parol contract-that is, the purchasing of the unexpired term, etc.-takes the case out of the statute of frauds. To entitle a party to the specific performance of a contract it must be so certain and unambiguous in its terms and in all its parts as that the court can require the specific thing contracted to be done. Long v. Long, 118 Ill. 640, 9 N. E. Rep. 247; Hamilton v. Harvey, 121 Ill. 471, 13 N. E. Rep. 210; Padfield v. Padfield, 92 Ill. 198;Langston v. Bates, 84 Ill. 524;Carver v. Lasater, 36 Ill. 195. And performance can only be decreed when the contract is clearly and satisfactorily proven. Ralls v. Ralls, 82 Ill. 243. So a contract not certain in its terms, and not clear and precise, will not be specifically enforced. Woods v. Evans, 113 Ill. 190. If the authority of its president to bind the corporation be incomplete, it cannot be said that the evidence clearly and satisfactorily shows that he made the contract as alleged. The evidence was presented in the form of affidavits and the sworn pleadings, so that there was no opportunity of cross-examination to test its real value. It leaves no doubt upon the mind that the president was disposed to aid the complainant in procuring a renewal of the lease, and expressed his belief that the lease would be renewed if complainant kept an orderly house. An election of directors and officers of the association was to be held in January, 1889, and, in view of the power and authority he is shown to have had, it is hardly probable that he would have made a definite contract in relation to the leasing of the association property. Upon the whole case we are inclined to adopt his statement and that of the secretary of the company. It will serve no useful purpose to review the evidence in detail, or give our view as to the weight to which the evidence of each witness is entitled. It is sufficient to say we have examined it, and cannot find that the contract for the renewal of the lease is clearly and satisfactorily established.

But if, upon further examination, it should be found we are mistaken in this regard, the further question arises whether there was such performance of the contract as to take it out of the operation of the statute of frauds. The acts of performance relied on to take the case out of the statute must be done under the contract sought to be enforced. ‘It must appear that the acts relied on as part performance of a contract within the statute of frauds were done under the contract itself, and for the purpose of performing it, otherwise they will not operate to defeat the statute. Story lays down the rule, if there are acts which might have been done with other views, they will take the case out of the statute, since they cannot properly be said to be done by way of part performance.’ Wood v. Thornly, 58 Ill. 468; Story, Eq. Jur. § 762. In the same case we further said: ‘To constitute such performance as will avoid the statute it must clearly and distinctly appear that the party entered into the possession under the agreement itself, and was allowed and induced to make expenditures of money, and to make valuable and permanent improvements. The mere possession of land under a parol agreement of sale, with the superadded fact of valuable improvements, will not be deemed part performance if the possession was obtained otherwise than under the agreement. The text-writers will agree in laying down the rule that, in order to take a case out of the statute, it is not only indispensable, but the acts done should be clear and definite, and referable exclusively to the contract, but the contract should also be established by competent proof to be clear, definite, and unequivocal in all its terms. Story, Eq. Jur. § 764. So it has been repeatedly held that it is not sufficient that the party is in possession, but it must affirmatively appear that he got possession under the agreement relied on, and in part performance of the same, and it must also distinctly appear that the money was expended or the improvements made under the contract of sale, and not otherwise.’ Pomeroy, (Spec. Perf. Cont. § 108,) says: ‘For a like reason the mere possession of...