Wackerle v. Nies
| Decision Date | 03 April 1935 |
| Docket Number | No. 22433.,22433. |
| Citation | 195 N.E. 35,359 Ill. 548 |
| Parties | WACKERLE v. NIES et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
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.
Winston, Strawn & Shaw, of Chicago (Harold A. Smith and Frank B. Gilmer, both of Chicago, of counsel), for plaintiff in error.
Edward D. Feinberg, of Chicago, for defendant in error.
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 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 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 delivered to May; the bank sending to the plaintiff the three notes of May representing the deferred installments recited in the written contract.
There was offered in evidence a writing bearing date of August 27, 1930, made and executed by the three defendants. This writing recites that the three parties, on or about August 14, 1930, made a verbal contract among themselves to purchase for their joint benefit certain oil and gas leases covering 2,240acres in Labette county, Kan., from H. E. Wackerle, and states the terms and conditions of the purchase, which are substantially the same as testified to by Wackerle as being the terms of the oral contract and as set out in the writing between May and Wackerle. The contract further recites: etc. The writing states that May held the leases for the benefit of himself and the other two defendants, and sets forth at length the details of the mutual agreement between the three defendants concerning such leases.
The defendant Nies testified that the three defendants met Brannon in Kansas City, and the four persons called upon the plaintiff at his office and talked over the matter of the gas properties, and Nies made the plaintiff a proposition to drill the property for one-half of the plaintiff's interest; that he refused, and that Nies then told him that he (Nies) was not interested in the property if it meant a cash investment; that Nies left the conference; that later May came out to see him and told him that he (May) had bought the property; that Nies then told May that he was not interested and did not want to sign any papers; that he then went to Wackerle's office and told him he wanted to see the May contract and wanted to know if Wackerle had got Nies' name in the contract, to which Wackerle replied that he had sold the property to May. Nies says he took the contract and read it over particularly to see that his name was not mentioned in it; that he made the payment of $1,500 at May's request because he was indebted to May for about $2,100. Nies says he saw the leases and notes at the Sheridan Trust & Savings Bank; that he looked at the notes to see if his name was on the notes and that it was not. He testified that he never read the contract of August 27, 1930, before he signed it and that he never got a copy of it. He later admitted he did have...
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