Zeta Bldg. Corp. v. Garst

• Decision Date: 18 January 1951
• Docket Number: No. 31710,31710
• Citation: 97 N.E.2d 331,408 Ill. 519
• Parties: ZETA BLDG. CORP. v. GARST et al.
• Court: Illinois Supreme Court

Page 331

97 N.E.2d 331

408 Ill. 519

ZETA BLDG. CORP. v. GARST et al.

No. 31710.

Supreme Court of Illinois.

Jan. 18, 1951.

As Modified on Denial of Rehearing March 19, 1951.

Orr, Lewis & Orr, and Rudnick & Wolfe, all of Chicago, and John Alan Appleman, Urbana (Warren H. Orr and Wallace W. Orr, Chicago, of counsel), for appellants.

Thomas & Mulliken, Champaign, for appellee.

SIMPSON, Chief Justice.

April 4, 1946, plaintiff-appellee, Zeta Building Corporation, hereinafter called plaintiff, filed its suit in the circuit court of Champaign County for specific performance against George Garst, Barbara Garst, and Glenn T. Ross, trustee, hereinafter called defendants. Hattimay Leonard, as tenant of the premises in question, was made a defendant and later Hurley Feltman and Julius C. Kamin became defendants because of their alleged purchase of the premises from the Garsts. The circuit court decreed specific performance and this appeal followed, a freehold being involved.

The contract which it is sought to have specifically performed bears date September 1, 1938, and provides that George Garst and Barbara Garst, who are husband and wife, will sell the premises in question to the plaintiff in consideration of the payment to them, or either of them, of $46,000 plus interest, in the manner therein provided. The instrument named Glenn T. Ross of Urbana, Illinois, as trustee, and provided that all payments should be made to him. His compensation for services was fixed at $60 per year, one half of which was to be paid by each party. In case of his death, resignation or refusal to act, a successor trustee was to be named by the Garsts or their successor or successors in ownership of the agreement. The instrument provided that time shall be of the essence of the agreement and in the event of failure of the plaintiff to make any of the payments of principal, interests, taxes and insurance therein provided for within sixty days after the same became due, or within sixty days after receipt of notice from the trustee of the existence of a deficiency in funds on hand for the payment of taxes or insurance, that the owners at their option upon giving written notice of their intention so to do, could declare the interest of the plaintiff in the contract and in the premises forfeited and at an end. The instrument was signed by Garst and wife and also by Zeta Building Corporation by Richard J. Young.

According to the instrument, $10,737.48 was paid in cash. It then provided for payment of the balance as follows: 'Three Hundred Dollars ($300.00) on the 15th day of September, 1938, and on the 15th day of each October, November, December, January, February, March, April, May and June thereafter, until the full amount of the balance, plus interest on the whole sum remaining from time to time unpaid shall be paid in full.' The trustee was required to account to the parties on the 1st of September each year for his receipts and disbursements for the preceding year and to estimate from the tax statements for the preceding year the approximate amount required from said date to and including the following September 1 for taxes and insurance premiums and to notify Zeta Building Corporation in writing of such estimate and accounting. The corporation agreed to pay all taxes and insurance premiums, one tenth of the estimate of which was to be payable at the time of each monthly payment.

Many points are urged for reversal of the decree. The record of testimony and exhibits is voluminous. The evidence conflicts sharply on almost every point in the case. The defendants say the alleged contract cannot be enforced because authority of the one who signed it on behalf of the plaintiff does not appear in writing; yet their answer admits that the agreement was entered into by the plaintiff through its duly authorized agent. Defendants amended their answer by adding a paragraph thereto pleading the Statute of Frauds but they did not change their expressed admission as aforesaid. In their reply brief they say: 'Plaintiffs Complaint alleges the written contract in paragraph III of the Complaint (Abst. 2) and in paragraphs VII, VIII, IX, X (Abst. 5-7) it alleges a verbal agreement changing the original agreement. Defendants' answer alleges a forfeiture of the original written agreement and then as a further defense to this suit for specific performance amended its answer to raise the issue of the Statute of Frauds to any verbal agreement to change the original written agreement.' They then argue that this amendment relates to the original written contract or to the right to bring any action for specific performance because of the Statute of Frauds. With the express admission that the plaintiff, by its duly authorized agent, entered into the agreement, remaining in the record along with the amendment 'to raise the issue of the Statute of Frauds to any verbal agreement to change the original written agreement,' we cannot hold the decree erroneous on the ground that the contract was not signed by an authorized agent.

As a further defense it is claimed that the contract was forfeited after default in the payments as provided for therein. Plaintiff denies that it defaulted. As bearing upon this question the construction of a portion of the contract is necessary. It provides for payment of $300 'on the 15th day of September, 1938, and on the 15th day of each October, November, December, January, February, March, April, May and June thereafter * * *,' etc. Defendants say this provision calls for ten payments in each year including the month of September, while the plaintiff claims that it calls for only nine payments in each year after September, 1938. The master found this issue in favor of the defendants, but the court sustained exceptions to his report and decreed that the provision called for only nine payments in each year. If we considered only the words as above quoted, we would hold with the court, but we note in another portion of the contract it is said, in referring to taxes and insurance premiums which plaintiff was...