Ullsperger v. Meyer

• Decision Date: 24 October 1905
• Citation: 75 N.E. 482,217 Ill. 262
• Parties: ULLSPERGER v. MEYER.
• Court: Illinois Supreme Court

217 Ill. 262

75 N.E. 482

ULLSPERGER

v.MEYER.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Circuit Court, Cook County; John L. Healy, Judge.

Bill by Anton Ullsperger against Charlotte Meyer. From a decree of a dismissal, complainant appeals. Reversed.

Walther & Lanaghen, for appellant.

Chester Firebaugh and Samuel J. Schaeffer, for appellee.

RICKS, J.

This was a suit for specific performance of a certain contract set out in appellant's bill of complaint, which is, in substance, as follows: It alleges: That on the 8th day of January, 1905, defendant was seised and possessed, in fee simple, of real estate situated in the city of Chicago, county of Cook, and state of Illinois, described as follows: The real estate and premises known as No. 1031 Milwaukee avenue, which are otherwise and legally described as lot 13 in the subdivision of the westerly half of block 11, in McReynold's subdivision of part of the E. 1/2 of the N. E. 1/4 of section 6, township 39 N., range 14 E. of the 3d P. M. That, being so seised, on that date said defendant agreed to sell said premises and real estate to the complainant for the sum of $14,000, and the complainant agreed to purchase said real estate and to pay said defendant therefor said sum of $14,000. That on that date, to evidence the sale and purchase, the said Charlotte Meyer, by the name of C. Meyer, executed a certain document in writing, which document is in the words and figures following:

‘Chicago, Jan. 8, 1904. Received of Anton Ullsperger $100 on said purchase of the property No. 1031 Milwaukee ave., at the price of $14,000. C. Meyer.’ The bill further alleges: That the said document bears date January 8, 1904, but in fact the same was written and signed by the defendant on the 8th day of January, 1905, and that an error and mistake were made by the person writing said document in stating the date as 1904, instead of 1905. That the said premises, described as No. 1031 Milwaukee avenue in said document aforesaid, are the same premises and real estate above described as lot 13, etc., and in the purchase of said premises aforesaid the complainant intended to purchase said lot 13, and said defendant intended to sell to the complainant said lot 13, aforesaid. That the complainant has always been willing to comply with the terms of the agreement on his part to be performed, and that a few days after the said 8th day of January, 1905, complainant applied to said defendant and offered to pay her the sum of $13,900, being the balance then due to the defendant under the said agreement, on said defendant delivering to the complainant a sufficient deed for said premises according to said agreement; and the defendant refused, and still refuses, to comply with said agreement on her part, although the complainant is and always has been ready and willing to pay said sum of $13,900 and to fully perform his part of said agreement whenever the defendant will make and deliver to complainant a good and sufficient deed for said premises aforesaid. That the defendant, subsequent to executing said document aforesaid, informed the complainant that the would not accept the balance of $13,900, and would not sell and convey said premises and real estate to the complainant in accordance with said agreement, and absolutely refused to carry said agreement out. The bill makes said Charlotte Meyer a party defendant, and prays that she may answer said bill not under oath, answer under oath being waived, and that the defendant may be decreed specifically to perform the said agreement entered into and make a good and sufficient deed of conveyance to the complainant of said premises, the complainant being ready and willing, and thereby offering specifically to perform said agreement on his part upon the defendant making out a good and sufficient title to the said premises and executing a proper conveyance thereof to the complainant pursuant to the terms of said agreement, and to pay the defendant the residue of said purchase money, and for general relief. To the bill general and special demurrers were filed, and the demurrers were sustained, and a decree was accordingly entered dismissing the bill for want of equity; and this appeal is prosecuted to review that decree.

The principal question presented for our consideration is whether or not the memorandum of writing entered into was sufficient to take the contract out of the statute of frauds and perjuries. The statute of frauds and perjuries (Hurd's Rev. St. 1903, p. 995, c. 59) reads:

‘Sec. 2. No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.’

Section 3 of the same chapter reads: ‘The consideration of any such promise or agreement need not be set forth or expressed in the writing, but may be proved or disproved by parol or other legal evidence.’

From the reading of the above sections of the statute it will be seen that it is only necessary that some memorandum or note be made of the contract and signed by the party to be charged therewith. ‘The statute does not require that the contract itself shall be reduced to writing. It is sufficient if there be a memorandum of the contract in writing, signed by the party to be charged or by some one by him duly authorized. Cossitt v. Hobbs, 56 Ill. 231;McConnell v. Brillhart, 17 Ill. 354, 65 Am. Dec. 661;Spangler v. Danforth, 65 Ill. 152;Wood v. Davis, 82 Ill. 311. No particular form of language is necessary to constitute the memorandum requisite to satisfy the requirements of the statute. An admission in writing of the bargain having been made, although it may not furnish exclusive evidence of the contract, as a final agreement would do, or an offer in writing so stating the proposal that its mere acceptance would fix the terms of the bargain, will, if accepted, satisfy the statute, and the acceptance of the offer in writing may be shown by parol. Browne on Statute of Frauds, § 345a; Esmay v. Gorton, 18 Ill. 483, and authorities supra; Farwell v. Lowther, 18 Ill. 252.’ Lasher v. Gardner, 124 Ill. 441, 16 N. E. 919.

The authorities are agreed that if the memorandum shall contain on its face the names of the parties vendor and vendee, a sufficiently clear and explicit description of the thing, interest, or property as will be capable of identification, together with the terms and conditions of the contract, and signed by the party to be charged, it will be sufficient upon which to predicate a decree for specific performance. McConnell v. Brillhart, supra. The contract or memorandum set up in the bill, while in the nature of a receipt, clearly evidences a sale of the property therein described as having taken place from appellee to appellant, and acknowledges that $100 has been paid upon the purchase price of $14,000 by appellant. Appellant is named as the purchaser, and the text of the writing clearly designates appellee as the vendor by whom the writing is signed; so that it will be seen that the contract or writing relied upon contains all that is required by the statute, and more, as the statute does not requirethat the consideration shall be stated in the writing but authorizes it to be established by parol.

It is insisted that there is no time specified for the completion of the contract, and that therefore the contract is not complete. Under such a contract the law would imply that it was to be performed within a reasonable time after entering into the same, and what would be a reasonable time would be a matter of proof under all the conditions and circumstances that might surround the case. Gibson v. Brown, 214 Ill. 330, 73 N. E. 578;Driver v. Ford, 90 Ill. 595;Hamilton v. Scully, 118 Ill. 192, 8 N. E. 767;Biddison v. Johnson, 50 Ill. App. 173. Time was not made the essence of the contract in question, and the bill was not obnoxious to demurrer because of the absence of the provision specifying the time in which the performance should take place. The allegation in the bill touching that matter is that appellant, within a few days after the making of the contract, applied to appellee for performance on appellee's part, and that appellant at the same time offered to perform on his part by paying the full balance of the purchase price.

The contention that the sum of $14,000 was an inadequate consideration, and that specific performance was properly refused for that reason, we regard as untenable. The consideration was that agreed upon between the parties, as shown by the contract and the allegations of the bill. In the absence of an answer showing that appellee was overreached, or some inequitable advantage taken of her through which the named consideration was fixed, the law presumes that the consideration fixed by the parties was an adequate and reasonable consideration. Furthermore, mere inadequacy of consideration, if agreed upon by the parties without fraud, would not be sufficient to defeat a decree for specific performance. The owner of the property has the right to sell it, or contract to sell it, for such price as he sees fit and is satisfied to fix; and if he does sell or agree to sell for a valuable consideration, although it may be inadequate, and no advantage was taken of him or the consideration fixed through fraud or misrepresentation, he cannot, when he finds that the property is worth more than he agreed to take or sell for, rescind the sale or refuse to perform.

It is urged that this contract lacks in the material element of mutuality. The particular ground upon which this contention is based is that the contract is signed by appellee only. It is found in option contracts, and unilateral contracts generally, that...