Pollack v. Marathon Oil Co.

• Decision Date: 14 January 1976
• Docket Number: No. 75--309,75--309
• Citation: 34 Ill.App.3d 861,341 N.E.2d 101
• Parties: Samuel H. POLLACK and Thomas A. Pollack, doing business as Pollack Brothers Oil Producers, a co-partnership, Plaintiffs-Appellants, v. MARATHON OIL COMPANY, a corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 101

341 N.E.2d 101

34 Ill.App.3d 861

Samuel H. POLLACK and Thomas A. Pollack, doing business as Pollack Brothers Oil Producers, a co-partnership Plaintiffs-Appellants, v. MARATHON OIL COMPANY, a corporation, Defendant-Appellee.

No. 75--309.

Appellate Court of Illinois, Fifth District.

Jan. 14, 1976.

Robert S. Hill, Benton, for plaintiffs-appellants.

James B. Wham of Wham & Wham, Centralia, C. Richard Turnbow, of Marathon Oil Co., Robinson, for defendant-appellee.

JONES, Justice.

This is an appeal from the dismissal of plaintiffs' amended complaint as amended and from the entry of judgment on the pleadings in favor of defendant. The only issues involved are whether the amended complaint as amended was sufficient to state a cause of action and whether the trial court erred in rendering judgment on the pleadings.

Plaintiffs, Samuel H. Pollack and Thomas A. Pollack, doing business as Pollack Brothers Oil Producers, filed their original complaint on December 8, 1972. The gist of the original (and of the later amended) complaints was that plaintiffs and defendant, Marathon Oil Company, had allegedly entered into a contract for the sale of certain oil and gas leases and that defendant had refused to perform on the alleged contract.

On January 15, 1973, defendant filed a motion to dismiss plaintiffs' original complaint for failure to state a cause of action. On February 22, 1973, plaintiffs were granted leave to amend the complaint, and on March 2, 1973, plaintiffs filed an amended complaint. Defendant, on March 23, 1973, again filed a motion to dismiss for failure to state a cause of action. The motion to dismiss was allowed on May 7, 1973, and the plaintiffs were given 28 days to again amend. Plaintiffs filed their amendment to the amended complaint on June 4, 1973, and defendant thereafter, on June 20, 1973 again filed a motion to dismiss for failure to state a cause of action. The motion to dismiss the amended complaint as amended was argued and allowed on November 19, 1973. On December 20, 1973, plaintiffs filed a motion for 'rehearing and reconsideration of defendant's motion to dismiss and judgment of dismissal.' The trial judge who had been presiding over the case discovered that he had a potential conflict of interest in the case because of the purchase of a small amount of oil by Marathon Oil Co., which had been produced by the lessee of land in which the judge owned the mineral rights. The trial judge, therefore, on February 11, 1974, allowed plaintiffs' motion for rehearing and withdrew from the case. The motion to dismiss was then argued before a different judge, and, on April 14, 1975, the motion to dismiss was granted and judgment on the pleadings was entered in favor of defendant. Plaintiffs filed their notice of appeal on May 14, 1975.

[1,2] Plaintiffs' original complaint and their first amended complaint had attached thereto and incorporated various written instruments, including the invitation to bid published by defendant, the bid submitted by plaintiffs, and various letters which had been sent between plaintiffs and defendant. Plaintiffs' amended complaint as amended had attached thereto and incorporated only the invitation to bid. Defendant urges us to look at the various written instruments attached to plaintiffs' first two complaints and thereby determine that no contract existed. However, none of the complaints were verified. We cannot, therefore, look to either the allegations or attachments of the original or first amended complaint. An amendment complete in itself, which does not refer to or adopt a prior, unverified pleading, supersedes the prior pleadings; and the prior pleading ceases to be part of the record for purposes of determining a motion to dismiss, for the prior pleading is, in effect, abandoned or withdrawn, with the result that the last amended pleading cannot be aided by anything, including written instruments, which was part of the prior pleading but not part of the amended pleading. W. P. Iverson & Co. v. Dunham Manufacturing Co., 18 Ill.App.2d 404, 152 N.E.2d 615; Yarc v. American Hospital Supply Corp., 17 Ill.App.3d 667, 307 N.E.2d 749; Stemm v. Rupel, 30 Ill.App.3d 864, 332 N.E.2d 686; 30 I.L.P., Pleading, § 20, p. 31.

In determining the sufficiency of plaintiffs' amended complaint as amended, the relevant portions of that complaint are the following:

'3. During July of 1972, the Marathon Oil Company advised that it was offering certain oil properties known as the Bungay Unit in Township 4 South, Range 7 East, Hamilton County, Illinois. That this offering was in accordance with an invitation to bid, a copy of which is attached hereto, and marked 'Exhibit A', and by reference made a part hereof.

4. Thereafter, a contract, partly in writing and partly oral, was entered into between the Plaintiff and Defendant by which the Defendant undertook to sell the properties listed in 'Exhibit A' to Plaintiff for and in consideration of the sum of Five Thousand One Hundred and 15/100 ($5,100.15) Dollars. That a condition to the performance of said agreement that the successful or high bidder 'will be subject to final approval by the working interest owners of the Bungay Unit.' That thereafter and within a reasonable time the working interest owners of the Bungay Unit approved this offer, except for one owner, who owned a minority interest in seven of the underlying tracts, making up a total participation within the Unit establishment between the parties at the rate of less than 20 per cent. The Defendant at no time undertook to exercise its reserved right to reject any bid, but instead accepted the bid of the Plaintiff.'

Section 31 of the Civil Practice Act (Ill.Rev.Stat., ch. 110, sec. 31) requires that substantial averments of fact must be alleged in stating a cause of action. Although properly pleaded allegations and well pleaded facts must be taken as true and admitted in the face of a motion to dismiss, conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which the conclusions are based are never admitted by a motion to dismiss. Roemer v. Zurich Insurance Co., 25 Ill.App.3d 606, 323 N.E.2d 582; Kuch and Watson, Inc. v. Woodman, 29 Ill.App.3d 638, 331 N.E.2d 350.

[4,5] A general allegation that a contract exists is, in the absence of a statement of supporting facts, a mere legal conclusion, which is not admitted by a motion to dismiss or a motion to strike. Odle v. Hoopeston Canning Co., 270 Ill.App. 432; Barnes v. Peoples Gas Light and Coke Co., 103 Ill.App.2d 425, 243 N.E.2d 855; 30 I.L.P., Pleading, § 7, p. 12, and § 11, p. 16--17. When pleading the existence of a contract, the pleader must allege facts sufficient to indicate offer, acceptance, and consideration. Barnes v. Peoples Gas Light and Coke Co.

Several decisions have discussed the necessity of pleading sufficient facts in settings analogous to that of the instant case, some of which merit discussion here. In Odle v. Hoopeston Canning Co., the court considered the sufficiency of an allegation in the complaint that 'it was mutually then and there definitely agreed between appellant and appellee that appellant would plant forty acres of said land.' The court concluded that such averment was 'but a pure conclusion of law' and 'not a sufficient allegation of mutual promises.' 270 Ill.App. at 440.

In Fisher Iron & Steel Co. v. Elgin, J. & E. Ry. Co. (7th Cir.) 101 F.2d 373, the plaintiff sought to recover for breach of a contract which the plaintiff intended to establish on the basis of an implied acceptance of an offer which had been made by the plaintiff to purchase certain railroad materials. The plaintiff's complaint alleged that the defendant had in 'divers ways, by its acts, statements and conduct respecting plaintiff's offer and by continuing to return said check for an unreasonable length of time thereafter, accepted the offer of purchase made by plaintiff.' The court stated:

'While a motion to dismiss undoubtedly admits that which is well pleaded, it is evident that 'in divers ways, by its acts, statements and conduct respecting plaintiff's offer,' is a mere conclusion of the pleader which is not admitted by such motion. Miller v. City of Chicago, 348 Ill. 34, 39, 180 N.E. 627.' 101 F.2d at 374.

Similarly, in Noll Baking & Ice Cream Co. v. Sparks Milling Co., 304 Ill.App. 624, 26 N.E.2d 425, an allegation in a complaint that the defendant had promised to return certain money was held to be a mere conclusion of the pleader.

In Barnes v. Peoples Gas Light and Coke Co., the court, after pointing out that the plaintiff had failed to allege facts sufficient to indicate offer, acceptance, and consideration, stated:

'No cause of action for the breach of a contractual obligation is stated. The complaint does not purport to be based on a written instrument such as a tariff. If it were, then, of course, the relevant portions of that instrument would have to be recited in, or attached to, the pleading, and, as indicated, they were not. Ill.Rev.Stats. (1965), ch. 110, § 36. We can only conclude, therefore, that the contract to which plaintiff alludes must have been oral. Yet, plaintiff alleges no other facts from which a duty to discontinue his service would arise.' 103 Ill.App.2d at 428, 243 N.E.2d at 857.

The court in Yarc v. American Hospital Supply Corp., held that, despite the mandate of Section 33 of the Civil Practice Act (Ill.Rev.Stat., ch. 110, par. 33) that pleadings should be liberally construed in order to effectuate...