Laegeler v. Bartlett

• Decision Date: 24 January 1957
• Docket Number: No. 34130,34130
• Citation: 10 Ill.2d 478,140 N.E.2d 702
• Parties: Julius C. LAEGELER et al., Appellees, v. Helen M. BARTLETT, Appellant. Fred A. GILFORD v. Helen M. BARTLETT et al.
• Court: Illinois Supreme Court

Page 702

140 N.E.2d 702

10 Ill.2d 478

Julius C. LAEGELER et al., Appellees, v. Helen M. BARTLETT, Appellant.

Fred A. GILFORD v. Helen M. BARTLETT et al.

No. 34130.

Supreme Court of Illinois.

Jan. 24, 1957.

Rehearing Denied March 19, 1957.

Singer & Singer, Highland Park, for appellant.

Behanna & Engber, Highland Park (Paul C. Behanna and Russell L. Engber, Highland Park, of counsel), for appellees.

DAILY, Justice.

Appellant, Helen M. Bartlett, the owner of a parcel of real property situated in Highland Park, was named as defendant in two successive proceedings filed in the circuit court of Lake County. By the first, Julius C. Laegeler and Lester Laegeler, as trustees, sought to compel specific performance of a contract for the sale of said property; by the second Fred A. Gilford, individually and as trustee, prayed foreclosure of two junior mortgages secured by the same property. During the course of the latter proceeding Gilford's interests were assigned to one Samuel Levitt, who was substituted as party plaintiff therein. By a counterclaim filed in the latter action the foreclosure of a first mortgage was also put in issue. The causes were tried separately, then consolidated just prior to the decree from which this appeal is taken. In such decree the court directed specific performance of the contract, foreclosure of the first mortgage, foreclosure of the two junior mortgages, fixed the rights of the respective parties, and directed distribution of the proceeds from the sale of the land. Appellant has appealed from the portions of the decree relating to the specific performance action and to the foreclosure of the two junior mortgages. Since the branch of the proceeding relating to specific performance of the contract puts the right to a freehold directly in issue, this court has jurisdiction on direct appeal. Pope v. Speiser, 7 Ill.2d 231, 130 N.E.2d 507; Livingston v. Meyers, 6 Ill.2d 325, 129 N.E.2d 12. The appellees in the specific performance action have filed their appearance and brief in this court; the plaintiff in the junior mortgage proceeding has done neither.

Facts pertinent to appellant's first contention, which is directed to the specific performance action, show that the contract, dated February 1, 1946, was signed by appellant as seller, and by the buyers, Julius C. Laegeler and Lester Laegeler, who are described in the body of the instrument as 'Trustees.' The contract makes no reference to the trust for which the vendee signators were acting, nor does the contract or the proof reflect any written authorization to the said trustees to bind the trust in such matter. On the basis of such facts appellant argues that the contract is unenforcible, first, because there is a lack of mutuality of obligation and, second, because it violates section 2 of the Statute of Frauds. (Ill.Rev.Stat.1945, chap. 59, par. 2.) Stated differently, it is appellant's contention that if the present positions of the parties were reversed, the trust could escape liability under the contract by defending on the ground that the trustees did not sign in its behalf, or that they had signed without written authorization to bind the trust.

The only authority advanced in support of appellant's position is Wloczewski v. Koslowski, 395 Ill. 402, 70 N.E.2d 560. When the facts of that case are analyzed, however, we do not find it to be either controlling or persuasive. There an undisclosed principal, who was not a signator and to whom there had never been an assignment, sought to compel specific performance by the sellers of a contract for the purchase of real estate which a purported agent had signed without written authorization to bind the principal. Under such facts, where the plaintiff had neither signed the contract nor bound himself to the authority of his purported agent, it was concluded there was a lack of mutuality of obligation which required a denial of specific performance. The facts of the present case are materially different. Here the persons seeking specific performance of the contract are both parties and signators to the instrument and openly dealt with appellant in their capacity as trustees. Under a somewhat analogous situation in Mackie v. Schonenstadt, 307 Ill. 398, 138 N.E. 686, where a purchaser signed a contract 'Herman Schoenstadt and Sons,' the court held there was no lack of mutuality of obligation even though the proof showed no such partnership existed. In reaching such result the court remarked 307 Ill. at page 407, 138 N.E. at page 689: 'Appellee bound herself to sell the property at an agreed price under the terms of the agreement, and who comprised or was meant by 'Herman Schoenstadt & Sons' was a matter possible to be shown or proven without any great effort.' The same is true in the present case. The appellant dealt with the sellers as trustees and were their positions now reversed the identity of the trust could easily be established. Even if this were not so, any claim to lack of mutuality of obligation must disappear in face of the decisions which establish that if a trustee makes a contract in his own name for the benefit of the trust, he is liable on it personally and not in his representative capacity, whether he describes himself as trustee or not. Equitable Trust Co. of Chicago v. Taylor, 330 Ill. 42, 46, 47, 161 N.E. 62; Wahl v. Schmidt, 307 Ill. 331, 341, 138 N.E. 604; Bradner Smith & Co. v. Williams, 178 Ill. 420, 53 N.E. 358.

The decisions last cited would also make it appear that an authorization to a trustee in writing is not necessary to take his contracts out of the Statute of Frauds. Be that as it may, it has been held in a long line of decisions both before and after the leading case of Ullsperger v. Meyer, 217 Ill. 262, 75 N.E. 482, 2 L.R.A.,N.S., 221, that the statute is satisfied if the memorandum or contract is signed by the party sought to be charged with performance of the contract. Here the contract was signed by appellant, the party charged, and, as pointed out in the Ullsperger case 217 Ill. at page 269, 75 N.E. 482, the act of appellees in filing their bill for specific performance bound them and rendered the contract mutual. It is to be concluded, therefore, that the contract does not lack for mutuality of obligation and that it does not violate the Statute of Frauds. Cf. Lipkin v. Koren, 392 Ill. 400, 64 N.E.2d 890.

During the course of the proceeding the evidence disclosed appellant was not the sole owner of the entire parcel agreed to be sold. She did own 139 feet thereof but owned only an undivided 1/12 in the remaining 23 feet of the parcel. Appellees filed an amended complaint to conform to the proof and the court thereafter confined its decree of specific performance to the land of which appellant was the sole owner and abated the purchase price accordingly. Appellant argues briefly and ineffectively that the failure of the owners of the remaining 11/12 interest to sign the contract creates a lack of mutuality which renders the contract unenforcible against anyone. The position adopted overlooks the established rule of equity that if a vendor has any title to the property he has contracted to convey, the vendee, at his option may enforce the contract with respect to whatever interest the vendor possesses, and the vendor will not be permitted to defend on the ground his title is not so complete as the one he agreed to convey. Cities Service Oil Co. v. Viering, 404 Ill. 538, 89 N.E.2d 392, 13 A.L.R.2d 1448; Baker v. Puffer, 299 Ill. 486, 132 N.E. 429; Moore v. Gariglietti, 228 Ill. 143, 81 N.E. 826; 49 Am.Jur., Specific Performance, sec. 102. The application of such a rule, and the equitable considerations from which it stems, dispel completely the contention that a vendor's lack of a complete title renders a contract void for lack of mutuality.

The next points of argument center around contractual provisions, which read as follows:

'Within a reasonable time to clear title, seller shall deliver to buyer or his agent (which delivery may be made at office of Guy Viti, Highwood, Illinois,) as evidence of title covering date hereof, showing record title in seller (or grantor).

'(2) Owners Guarantee Policy of Illinois Title Company in the amount of the purchase price or its customary preliminary report on title subject to the usual objections contained in such policies, though, if such report be furnished, seller shall deliver such guarantee policy when deed is delivered, but seller, on furnishing such report shall not be in default for failure to furnish policy until ten days after demand therefor by buyer, such policy or report on title to be conclusive evidence of good title subject only to the exceptions therein stated.

'If evidence of title furnished discloses any defect in title except matters to which the sale is subject by the terms hereof seller shall have sixty days, computed from delivery of objections in case of an abstract, and from delivery of evidence of title in any other case, in which to cure all defects to which the sale is not subject. Seller, at his election, may cure all objections to defects in title by delivery of guarantee policy covering such objections such as he might have furnished in the first instance. If such defects in title be not cured within such sixty days buyer may terminate his contract or may at his election, take the title as it then is (with right to deduct from purchase price liens of definite or ascertainable amount) on giving seller notice of such election and tendering performance. If no such notice be given or tender made within ten days after notice to buyer of seller's inability to cure such defects, this contract then shall be null and void. If this contract be terminated except for buyer's default earnest money shall be returned.'

Relying upon such decisions as Stagman v. Lasson, 345 Ill. 482, 178 N.E. 166; Mitchell v. White, 295 Ill. 135, 128 N.E. 803, and Short v. Kieffer, 142 Ill. 258...