Wackerle v. Nies, 22433.

• Court: Supreme Court of Illinois
• Writing for the Court: HERRICK
• Citation: 195 N.E. 35,359 Ill. 548
• Parties: WACKERLE v. NIES et al.
• Docket Number: No. 22433.,22433.
• Decision Date: 03 April 1935

359 Ill. 548
195 N.E. 35

WACKERLE
v.
NIES et al.

No. 22433.

Supreme Court of Illinois.

Feb. 15, 1935.
Rehearing Denied April 3, 1935.

Error to Third Branch Appellate Court, First District, on Appeal from Municipal Court of Chicago; John F. O'Connell, Judge.

Suit by H. E. Wackerle against Louis Nies and others. Judgment for plaintiff was affirmed by the Appellate Court (273 Ill. App. 609), and defendant Louis Nies brings certiorari.

Affirmed.

SHAW, J., dissenting.

[359 Ill. 549]Winston, Strawn & Shaw, of Chicago (Harold A. Smith and Frank B. Gilmer, both of Chicago, of counsel), for plaintiff in error.

[195 N.E. 36]

Edward D. Feinberg, of Chicago, for defendant in error.

HERRICK, Justice.

H. E. Wackerle, defendant in error (hereinafter called the plaintiff) filed his amended statement of claim in the municipal court of Chicago against Louis Nies, Walter J. May, and William E. Swink (hereinafter called the defendants). Nies and May filed separate affidavits of merits. The cause was submitted to the court without a jury. The issues were found against the defendants, the plaintiff's damages were assessed at $9,974.67, and judgment for that sum and costs was rendered. Nies prosecuted an appeal [359 Ill. 550]to the Appellate Court for the First District, where the judgment was affirmed. Wackerle v. Nies, 273 Ill. App. 609. The record is brought here by Nies on writ of certiorari.

The allegations of the amended statement of claim are, in substance, that on August 14, 1930, the plaintiff sold to the defendants seventeen oil and gas leases at an agreed price of $11,000; that on that day the defendant Nies paid $1,500 on the purchase price and orally agreed to pay the remaining $9,500 in three installments, the first and second of $2,500 each and the third of $4,500, on or before the 20th days of September, October, and November, 1930, respectively; that it was agreed the plaintiff should make delivery of such leases by delivering assignments thereof to Walter J. May, one of the defendants, as assignee, which delivery should be made by forwarding the leases and assignments to the Sheridan Trust & Savings Bank in Chicago on or before August 20, 1930; that delivery was so made; that at the time of the sale and purchase of such leases the defendants entered into the possession of the leased lands and began the exploration thereof for oil and gas by drilling a well thereon; that they are now in possession of such leases and the assignments thereof; that the plaintiff has performed and consummated the sale on his part, but the defendants have failed and refused to pay the balance of the purchase price.

The defendant Nies by his affidavit of merits denied that he, either jointly or severally, entered into a contract, either oral or written, for the purchase of the leases mentioned in the statement of claim, or that he agreed such leases should be assigned or delivered to May, or that he entered into possession of the lands described in the leases, or that he owes any part of the sum demanded by the plaintiff. He also set up the statute of frauds, asserting that each of the promises alleged by the plaintiff was one to answer for the debt of another or involved a sale of [359 Ill. 551]goods or choses in action of the value of $500 or upward; that nothing was done or suffered by Nies to subject him to liability; and that in no instance was the alleged promise or agreement, or some memorandum or note thereof, in writing and signed by him or some other person by him thereunto lawfully authorized.

The plaintiff testified that on August 13, 1930, the three defendants, together with one Brannon, an oil well driller, called upon plaintiff at his office in Edna, Kan., and there had a conversation about oil and gas lands; that defendants requested the plaintiff to show them the gas lands; that Brannon, Nies, May, and Swink went with the plaintiff and drove over the properties covered by the leases here involved; that, after making an inspection of the properties, the parties returned to the office, and negotiations were then had between them for the purchase of the leases, covering approximately 2,240 acres; that the plaintiff asked $12,000 for the leases and Nies offered $10,000; and that the parties finally agreed upon $11,000 as the price which defendants agreed to pay. The plaintiff further testified that Nies stated, in substance, that he wanted May to take the property in his name and instructed the plaintiff to assign the leases to May, and that Nies wanted a contract drawn between the plaintiff and May. Accordingly a written contract was prepared under date of August 14 reciting the sale of the leases to May at the price of $11,000, $1,500 of which was paid in cash and the remainder to be paid in installments as hereinbefore stated. Nies paid the $1,500 on that day by his personal check payable to the plaintiff. He also made a contract with the plaintiff by which the plaintiff agreed to move a drill rig to the property within forty-eight hours and drill the premises under the supervision of Brannon. The plaintiff moved the drill on the property as agreed and the property was drilled by the defendants. The leases and the assignments were forwarded to the Sheridan Trust & Savings Bank at Chicago and [359 Ill. 552]delivered to May; the bank sending to the plaintiff the three notes of May representing...