Leach v. Hazel

• Decision Date: 18 September 1947
• Docket Number: No. 30193.,30193.
• Citation: 74 N.E.2d 797,398 Ill. 33
• Parties: LEACH v. HAZEL et ux.
• Court: Illinois Supreme Court

398 Ill. 33

74 N.E.2d 797

LEACH

v.HAZEL et ux.

No. 30193.

Supreme Court of Illinois.

Sept. 18, 1947.

Appeal from Circuit Court, Macoupin County; L. E. Wilhite, judge.

Action by Alfred M. Leach against Henry B. Hazel and wife for specific performance of a contract for sale of realty. Decree for plaintiff, and defendants appeal.

Reversed and remanded, with directions.Snell & Seyfrit and Victor Hemphill, all of Carlinville, for appellants.

Rinaker, Smith & Hebron, of Carlinville, for appellees.

GUNN, Justice.

Alfred M. Leach, appellee, filed his complaint in the circuit court of Macoupin county against Henry B. Hazel and Helen Hazel for specific performance, based upon an alleged contract mainly evidenced by correspondence. The complaint charges that through their agent the appellants sold the property to appellee. The appellants deny the material parts of the complaint, and plead affirmatively that no contract existed because there was no contract in writing between appellee and appellants, and that no agent of appellants had been authorized in writing to contract with appellee, as provided by the Statute of Frauds. Ill.Rev.Stat.1945, chap. 59, par. 2.

It is undisputed that appellant Helen Hazel is a joint tenant with her husband, and that she had nothing to do with employing the agent or contracting with the appellee. The cause was referred to a master, who reported in favor of appellee, and objections to his report was overruled, and the court entered a decree, ordering appellants to deliver to the clerk of the court an abstract showing merchantable title to the premises, together with a warranty deed conveying the premises free and clear of all liens and encumbrances, except the 1946 general real estate taxes, to appellee, and in case of default the special master was directed to carry out the decree of the court. The appeal comes directly to this court because a freehold is involved.

On July 25, 1945, appellant Henry B. Hazel wrote a letter to a real estate broker, Everett Perrings, asking him if he could sell in 90 days his house in Carlinville, at $2750 for ‘our part.’ Perrings answered and said that he would undertake to sell the premises for that price upon 90 days exclusive right to sell, but that there would be a small expense, viz., $3.30 for revenue stamps and a small charge for bringing the abstract down to date. In reply to this Hazel wrote that he agreed to pay the small charges mentioned and give the exclusive right to sell for 90 days only. Shortly thereafter Perrings submitted a bid for $2600, out of which would be deducted his commission. Appellant Hazel immediately replied that he would not accept it. A few days thereafter Hazel received a letter from appellee, who said that he understood the place was for sale, and wanted to know the low dollar on it, and said he understood the price was $2650 for the place. Hazel replied to Leach, advising him that Mr. Perrings had the exclusive right to sell the premises, and also that his understanding of the price was wrong. Hazel then wrote Perrings about this prospective buyer, but told him he had made a mistake in the price. About a week after this Perrings wrote Hazel inquiring about what appeared to be an encroachment upon the property by one of the outbuildings of the next-door neighbor. Hazel was away, and Mrs. Hazel answered, referring him to a former owner, who could give him the information; and said they had given nobody permission to encroach upon the lot. In the letter Perrings asked about the abstract, and Mrs. Hazel in her reply stated that Mr. Hazel would have to send it, as she knew nothing about it.

On August 11, 1945, Perrings wrote Hazel and told him he had sold the place to Leach. He said he was mailing a deed for their signature, and upon execution he would collect the money and remit it. Nothing whatsoever was said in this letter about the terms, price, time of delivery or the conditions upon which the property had been sold. On August 14, Hazel discovered he was to be transferred from his then place of business, and directed negotiations for the sale of the property to cease. On August 9, Leach gave the broker, Perrings, a check for $200, which the latter explains was $125 brokerage fee and $75 on account of the purchase. Perrings did not pay appellants any of it. Later this money was tendered back to Leach, who refused to receive it. On October 9, 1945, a letter was mailed to Hazel by appellee in which he said he had deposited in a bank $2625 in escrow, to be delivered upon receipt of an abstract ‘showing merchantable title in you and your wife, and a warranty deed signed by you and your wife conveying this property to me and my wife,’ and advising Hazel this was in accordance with his contract to purchase the Carlinville property.

In addition to these written exhibits Perrings testified he did not know Mrs. Hazel, and he never had any transactions with her, except the reply to his letter to Mr. Hazel above referred to. Both Mr. and Mrs. Hazel testified Mrs. Hazel never had agreed to the sale, and had announced to her husband she would not sign a deed to the property and was opposed to a sale, but Hazel testified that he had thought possibly he could ‘sell her’ on the idea of signing up if he ‘made a deal’ for the property. It is quite clear that Mrs. Hazel was opposed to the sale.

It is contended by appellants the appellee was not entitled to a specific performance or conveyance of this property, because there was no contract in writing signed by appellants, or signed by any agent of the appellants, authorized in writing by them to make such sale. Neither does the complaint allege there was any contract in writing, but sets out merely as exhibits the instruments above referred to. Appellee contends, however, that there was sufficient memoranda to comply with the Statute of Frauds, growing out of the correspondence between the parties.

From the foregoing recital of the facts, it is clear that nobody signed a contract with Leach to sell and deliver the property. Perrings says he did not sign a contract; Leach does not claim that he did, and neither Mr. nor Mrs. Hazel signed such a contract. The claim of appellee narrows down to this situation: When Leach wrote Hazel directly about the property the latter replied it was exclusively in the hands of his broker, Perrings, and that he was sorry he could not deal with him directly. Appellee then refers to the letter that Hazel wrote to his broker Perrings, in which Hazel had stated ‘anything that is done regarding the sale will have to come through your office,’ and claims this combination of the letter from Hazel to Leach, and the other from Hazel to his own real estate broker amounts to saying to Leach that the terms and conditions of the contract were in the hands of his broker, and that he should go there to ascertain them. We do not see how such a construction can be placed upon these two letters, the one simply telling an inquirer he could not deal with...