Reynolds v. Wetzler

• Decision Date: 21 June 1912
• Citation: 254 Ill. 607,98 N.E. 993
• Parties: REYNOLDS v. WETZLER.
• Court: Illinois Supreme Court

254 Ill. 607

98 N.E. 993

REYNOLDS

v.WETZLER.

Supreme Court of Illinois.

June 21, 1912.

Appeal from Circuit Court, Rock Island County; William H. Gest, Judge.

Specific performance by Benton Reynolds against Anna Wetzler. From a decree dismissing the bill, plaintiff appeals. Affirmed.

William C. Allen and Robert R. Reynolds, for appellant.

Searle & Marshall, for appellee.

VICKERS, J.

Benton Reynolds, appellant, filed a bill in the circuit court of Rock Island county against Anna Wetzler for the specific performance of a contract for the sale of a farm located in Rock Island county. The contract sought to be enforced is alleged to have been entered into between the parties by correspondence and telegraph. Upon a hearing in the circuit court the bill was dismissed for want of equity, and the complainant below has removed the record to this court for review by appeal.

In October, 1909, appellee was the owner of a farm of 200 acres in Rock Island county. She resided in Peoria. About the 5th of October she went to Colorado, and was absent from the state until the end of the month. Before going to Colorado she told her brother, Samuel Schumacher, and her son, Samuel, that she had decided to sell the Rock Island farm, and asked them to try to find a buyer at $80 per acre. Appellant claims to have made a contract in writing with Schumacher for the purchase of the farm. To this claim the appellee sets up two defenses: First, that Schumacher had no authority in writing to sell the farm and, second, he made no contract in writing, with appellant for the sale. If either of these defenses is sustained, it follows that the decree below is right and must be affirmed.

[1] Assuming, for the sake of argument, that Schumacher was duly authorized to enter into a binding contract for the sale of the farm of appellee, the burden of proving the making of such contract, by evidence that is clear and convincing, rests upon appellant. Appellant claims that an unconditional offer to sell him the farm at $80 per acre was submitted to him by Schumacher in a letter dated October 14, 1909, and which was accepted by appellant by a telegram on October 16th. The letter supposed to contain the proposition was not offered in evidence. An attempt to account for its loss was made and secondary proof of its contents submitted. This proof consisted of the statements of appellant and his agent, William Peppers, corroborated by an envelope addressed to the appellant by Schumacher which was stamped October 14th on the face and October 15th on the back, indicating that the letter had been posted on the 14th of October, and received at the place of delivery on the 15th. Appellant, in attempting to give the contents of this letter, said that he thought he remembered the substanceof the contents or some of it. He was asked to state the contents of the letter, and answered: ‘Well, it was this way. He understood me to make a cash offer of $80 per acre. Q. Who understood you? A. Mr. Schumacher. Q. Was the letter written or addressed to any particular person? A. That was the price, $80 per acre; if I would make it a cash deal. I could have the farm by making a deposit-I believe that was in the letter, too-of $500 in the Muscatine bank. That was about the substance of the letter. Q. If you can recall anything further contained in the letter referred to, please so state-something about the money that was to be paid March 1. A. There was to be paid $500 down, the balance on March 1. I cannot recall anything further at the present time. No, I think I have stated it all.’

Peppers testifies that appellant gave the letter referred to, to him, and that he read it; that the letter had been lost in some way, but the envelope was preserved. When asked as to the contents of the lost letter, he said he thought he remembered it in substance, and, when asked to state the contents, said: ‘The letter read like this: That he could have his sister's farm at $80 per acre, with $500 deposited at the present time and the balance paid on March 1, 1910. Q. Just state the way the letter read, as near as you can, with reference to the $500. A. To deposit in some bank. Q. Where, if you remember? A. I think it said in Muscatine. The letter was directed to Benton Reynolds, and was written by Mr. Schumacher. I don't know where it was mailed. I saw the letter October 16th.’ Upon cross-examination Peppers was asked whether he could remember the language of the letter, and he said that he did not know that he could tell, as it had been so long ago-over two years. He was then asked whether he had any memory of the substance of that letter, and he said, ‘I could not swear to it just what was in that letter.’ He was asked whether it had gone from memory, and he said: ‘To a certain extent. I could not tell you what was in that...