*1 (No. 34824 .
Borg-Warner Appellant, Corporation, vs. Anchor Inc., et
Coupling al. Appellees. Co., Opinion Nov. Rehearing denied March filed 195 8 *2 Bristow, JJ., dissenting.
Schaefer W. W. Murphy, Houchins, Robert Charles all of for M. Hennessy, Chicago, appellant. Dean C. Wines, Burdett, Bishop, William Robert J. Burdett, all for Doherty, of Chicago, ap- Falasz pellees. Klingbiel
Mr. delivered the of the Justice court:
This action was brought Borg-Warner Corporation dam- alternative, money in the specific performance or, on an and Anchor ages, between alleged Co. its chief Coupling officers, Charles L.
Walter The dismissed on Fritsch. amended complaint had failed a plaintiff to allege completed ground of a cause of action capable specific performance for damages. was transferred from the to this court appeal Ap- free-
pellate Court, for the reason that a District, Second hold is involved, certain real being among property assets of defendant which were the of the subject alleged contract. of
Since of the lower dismissal propriety court’s the case solely on of depends sufficiency plaintiff’s amended it is set the facts forth complaint, necessary as in said alleged some detail. complaint
Plaintiff and Anchor herein- defendant, Co., Coupling after called under the Anchor, corporations organized of laws Illinois and in the business manufactur- engaged Anchor has issued and shares ing. 4,400 outstanding stock, owned as follows: shares, Walter Fritsch 1,649 John shares, Fritsch of Walter (son Fritsch) Charles L. (uncle of Charles shares, Conroy) Wier Conroy 2,045 L. shares. Defendant Fritsch and shares, Leubkeman his son, with and the stock owned by dealt represented it and defendant Fritsch, own, as were his though John at all Fritsch and defendant owned Conroy Fritsch, John For ten times cent of Anchor’s stock. relevant per 92.96 defendants and Fritsch have constituted two years Conroy have of the three directors of Anchor and dominated exercised control over all the affairs and acts of complete consent Anchor with the of the other acquiescence and the director, Albrecht, shareholders board. third has never owned in the Anchor, any shares employee company.
Prior to confer- February 20, 1956, plaintiff engaged ences and with defendants negotiations Conroy Fritsch, shareholders of Anchor and its chief execu- controlling tive and directors, officers respecting plain- purchase tiff of all and assets of As a result Anchor. property these oral negotiations an was reached that agreement defendants would sell all said property assets for the sum of if the results $4,023,500, survey of a of Anchor’s assets were investigation satisfactory to plaintiff.
On February a 20, wrote letter 1956, plaintiff to Anchor forth detailed setting giving plaintiff 60-day all of option purchase Anchor’s business and assets. This was not signed by Anchor, but on instead, February was sent to Anchor’s letter- head and defendants signed by Fritsch. Since decision this case turns chiefly upon interpretation *4 to on this we placed letter, quote its in significant parts full:
“Gentlemen: will confirm letter outline and our conversation at luncheon today your Porter, with Murphy, Steg Messrs. and Peifer.
238 your unwilling option are formal with We to enter into a com- proposed 20, pany your February as in letter of This is not purpose damage horse-trading, for the but rather avoid internally and in our by you which a turn-down would cause both market. company you willing to sell the assets of our We would be 6, $4,025,000 paragraphs 3, 5, in the terms of accordance with 20, 1956, if 7, 8, 9, 11, 13, your February letter of today without the reservations elsewhere such an offer were made exceptions letter, subject noted below. in that contained authorizing you intent may consider this as letter of You survey you your firm and necessary to make offer a
make deem cooperation making binding one; you and we assure of our full possible. completed suggest quickly as as it. We it be v [*] [*] you make a firm offer within You are assured that should date, willing to enter into a fifty days from this we are para- you on the terms of the above numbered with basis of the following your February 1956, with the graphs of letter of exceptions: given for the retention of That suitable assurances (a) personnel; lower level executive are made for the mutually satisfactory arrangements (b) That employment of Charles continued L. Conroy; party any restric- shall not be a (c) That D. Leubkeman J. your paragraph letter of Febru- tive covenant outlined 20, 1956; ary para- purchase price adjustment mentioned in any That (d) February 20, 1956, only be made your shall (7) of letter of graph us.” mutual between by their of defendants whether thereafter inquired Plaintiff understood correctly by was February plaintiff not be revoked during period firm which would as a offer later extended to was (which in said letter period stated said could within and which accept 1956) plaintiff April and whether sale, so as to create contract of a binding period Anchor’s business could make its survey opera- plaintiff defendants thereto, tions reliance thereon. response their assured Fritsch, agent, that said letter “in had “in an effect option”; * * * to enter effect us legal [defendants] *5 [referring minor very things those four with into letter of of defendants’ (d) to (a) through paragraphs the further that on’; agree- still to be agreed February 29] said to offer prevent not intended ments referred were but were of acceptance from offer being complete capable offer, of said minor details which, upon acceptance in faith in a would be work out good obligated fifty if within manner, days reasonable and that plaintiff defendants letter, in with said made offer conformity that the would be the conditions subject only to obligated, time limited and that be delivered within the acceptance be secrecy, conducted such accept investigation offer. March 14,
On wrote letter plaintiff Conroy, 1956, Fritsch and “You our Anchor indicate that offer saying, on the basis outlined will be if made within accepted fifty from this date” days that the time asking fifty days be extended to 26 and that the be ad- April purchase price justed to $4,024,000. This letter was initialed by Conroy and Fritsch and returned to plaintiff. on
Finally, April wrote to defendants plaintiff that had saying decided to proceed acquisi- tion of Anchor’s assets. read “Please part: consider this our formal offer, therefore, to enter into an in accordance with our letters to of March you 14th, and 20th February and your letter to us Febru- ary Our letter to you of March 14th, terms of 29th. which were accepted by you indicates that this will by you mailed accepted on April 26th.” Plaintiff that alleges at this point a completed contract came into existence. Plaintiff also that in alleges various subsequent conversations defendants represented agreed there that was a complete contract between defendants until on August 1, 1956, defendant Conroy raised objections to the performance of said contract, and on September contract, refused to 27, 1956, said perform filed admitting allega-
Defendant Fritsch an answer “he did believe stating tions plaintiff’s complaint he did enter a contract and into agreement, by its part fair, same was truly open performed his willing- reiterate and this defendant does again plaintiff, the shares the same for behalf of ness to and on perform De- Fritsch.” son, of stock owned him and his John dismiss plain- Anchor filed motions fendants tiff’s'amended complaint. *6 amended the these the trial dismissed facts, court
On of the face on it on the that ground appeared complaint material on the failed to that the had agree pleadings parties failure vis.: terms of the contract, (a) proposed personnel, on the lower level executive retention of agree arrangements and failure (b) satisfactory make mutually the Further, for the continued of Conroy. employment written corre- court held that no in the there was ambiguity of the between the therefore spondence Statute parties of consideration Frauds and evidence rule barred parol any evidence parol pleaded by plaintiff. us let between
First, analyze the correspondence in terms and accept of the rules of offer parties contract ance. Plaintiff’s letter forth of February setting This detailed option an offer agreement, by plaintiff. offer was defend instead, by defendants, but accepted stating ants Conroy and Fritsch letter wrote a to plaintiff that would Anchor they be to sell assets willing February accordance with certain paragraphs plaintiff’s 20th letter, that a “letter this could consider plaintiff intent,” that if offer within make firm plaintiff should a fifty days, with defendants would enter into a them on the basis of the enumerated paragraphs (c) February letter, (b), with the (a), exceptions: and (d). This letter offer varied the terms of plaintiff’s Schulman, and thus constituted a (Snow counteroffer. Ill. 63, 71.) plaintiff it terms Although spoke ask- itself, an offer viewed as it must be offer, an making as an offer. be worded that acceptance plaintiff’s ing referred to plaintiff’s that defendants clear from fact it could The only way one. as “firm and binding” constituted that it legally be firm and would be binding by submitting As requested, accepted plaintiff acceptance. “formal offer” April at a contract sufficient to create
Was this acceptance did contend, (a) defendants exceptions this point or, The answer a contract? (b) formation of prevent Corbin on on what the intended. Con- (1 depends 1st ed. defendants Were tracts, asking p. 69.) contracts of and the lower between employment level executive between personnel had to be actually to as conditions to the agreed precedent existence of the contract? were defendants Or, merely asking plaintiff, by assur- general acceptance, give ance as retention of lower executive personnel agree mutually be satisfactory would arrangements made for the employment Conroy?
In this we find regard, the offer in the February Thus this falls ambiguous. case within the well- recognized to the evidence exception rule that parol *7 terms provisions of a contract are ifor ambiguous, are writings of more capable than one construction, parol evidence is admissible to and ascertain explain what the parties intended. (Street v. Chicago Wharfing Storage Co. Ill. 605; C.J.S., Evidence, sec. 959.) 157 to applies contracts within the Statute Frauds as well as to any other contract. Plaintiff to add seeking terms to the writings by but is parol, merely to ex trying what plain the parties intended by the written words. The trial court was in error in that the holding evidence parol pleaded by plaintiff could not be considered.
The question then is whether the written correspond ence, together with the facts the terms pleaded explaining the written taken in its communications, most favorable disclose a We believe the contract. factors,
aspect, following sufficient a that a com proved, support finding contract came into existence the time at sub pleted plaintiff its offer on mitted formal so it is April holding, reliance on other cases place great impossible except as state they insofar of law. general principles Contract must each turn on their own cases, particularly, particular As said Professor “A by Corbin, facts. transaction is com when the mean it to be It is a mere parties plete complete. their matter of to each other, interpretation expressions fact.” Corbin on 1st ed. question Contracts, P-6g- and defendant Fritsch intended that a plaintiff
Both was all that was acceptance necessary general a contract to come into existence. Fritsch has so ad- his answer that he believes there mitted was a stating we do contract. not believe this Although admis- binding is determinative of it is case, sion extremely significant to show that the so intended. tending The fact sums of plaintiff spent large money survey Anchor’s business tends conducting certainly indicate it believed a mere of defendants’ acceptance be would sufficient to form a contract. If plaintiff believed that had contracts had first employment one would whether upon, seriously question it agreed would such sums without expend large attempting nego- Furthermore, tiate such contracts. was not un- in its Defendants’ letter reasonable belief. of February 29 with “assurances” to induce ex- sprinkled plaintiff to substantial money survey. It referred to pend making to make a “firm and plaintiff’s right offer and binding” defendants’ “enter offer to into a contract with you.” Such warranted a reasonable belief language part plain- tiff that a contract would be its completed by acceptance of the offer. *8 themselves Professor Corbin as quote say-
Defendants that one of the believe may ing: though parties “Even items have been all negotiations concluded, agreed upon, is still unless he contract there no contract closed, in his reasonable other party ought belief have known that he would so believe.” on Con- Corbin (1 1st tracts, sec, 29, 66.) ed. 1950, p. (Emphasis supplied.) We are of the that was reasonable in its plaintiff belief and that ex- defendants, knowing plaintiff’s large to have penditures, “ought known that would (plaintiff) believe” so that its of defendants’ terms would acceptance create a contract.
Another factor is the that important allegation plaintiff whether specifically inquired defendants’ February 29 was intended as firma offer which could plaintiff accept fifty within so days as to create a contract. binding their response, defendants, by assured that agent, it had “in effect an and that option” exceptions (a) through were not intended to (d) said offer from prevent being complete but were capable minor details acceptance which, upon of said acceptance offer, would parties to work obligated out faith in a good reasonable manner. Such facts clearly support contention plaintiff’s parties intended that all that was necessary the contract was complete plaintiff’s general acceptance defendants’ terms.
Plaintiff further alleges subsequent its accept- ance of April 26, defendants, their actions and conver- sations, represented there was a completed between the parties.
If, as the above evidence indicates, intended that a general acceptance by would complete the fact contract, that the employment contracts of Conroy and other executive personnel were left for future agree ment does not preclude existence of an enforceable con tract. See Jakstas, Welsh v. Ill. where this *9 “The
court said: when resulted in a option, accepted, pres- ent contract for the The sale of real estate. of provisions the the sale then constituted contract of option agreement stated in clear and the unambiguous language, price, terms the A contract is not rendered and conditions of sale. to void because the thereto contract or con- parties agree tract additional matters." concerning (Emphasis supplied.)
We are of the that on the of the com- allegations the trier of fact that there was a binding could find plaint, was contract of sale in the instant case. Plaintiff therefore existence a trial the the of the con- entitled to question evi- have recourse to tract. Where it is to necessary parol in letters used determine the dence to meaning language contract, a as evidencing which are relied or telegrams upon is such language the factual question the to meaning Brown be drawn. may for the conclusions jury opposite M’Gran, (U.S.) 479, Pet. there was a binding it is found that trial, If, upon the contract, perform we see to specific nothing prevent con the contract. Defendants’ argument ance of that it did not because is not enforceable tract specifically merit. is without bind defendant to corporation purport since Anchor is not controlling was bound or not Whether and Eritsch Conroy a decree is seeking requiring carry to cent of the (who stock) own per personally its Anchor transfer to cause necessary out steps Ill. 340, assets. Bros. Co. Schmidt v. Schmidt said: “While this court made, where similar was argument of the to sell property of the agreement parties title to sufficient transfer legal was not corporation consideration, contract, sufficient such their property, upon While sale of the to do lawful was any binding. act this fact them, the title to $1,000 tools for did not transfer from the does not relieve E. obligation Schmidt John his He to wind contract. agreed up corporation all manner within three accounts months, pay lawful for any its name to use bills of the not corporation do his to do or It within new work. was power in his agreement There was unlawful nothing these things. will enforce.” the contract is one which a court of equity indefinite do think the contract too Neither we was left enforcement. only thing capable specific for future employment Under terms of the offer and Conroy. acceptance, under have to be agreed employed A satis mutually “mutually satisfactory arrangements.” “The factory a reasonable arrangement arrangement. ‘mutual satisfaction’ means reasonable phrase satisfaction. ** * equivalent mutual satisfaction is Assuming to satisfaction to each that mutual satis party independently, *10 faction would have necessarily to be reasonable satisfaction ** *. The burden we have here is find out whether the have reserved parties the to be or whether arbitrary right they have such for controlling a reasonable satisfaction right both upon think should contracting We that we parties. construe ‘mutual satisfaction’ as reasonable satisfaction and thus the uphold contract.” (Bondy Harvey, (2d Cir. 62 F.2d 1933) cert. den. 521, 524, A 740.) U.S. to render promise performance to a reasonable satisfactory isman not too indefinite. Contracts, (3 Williston, section relied Cases 675A.) by defendants in which promises were held too indefinite for enforcement the because contract reserved a unilateral right satisfaction one party in point here where contract provides arrangement will be If the mutually satisfactory. cannot agree, proof Conroy’s terms of employ present ment, of the rates prevailing other compensation terms of employment of a similar persons standing similar businessses, and of established at prior practices Anchor, would enable a jury court or to fix reasonable terms of employment. Thus the contract, established, capable of specific performance. is reversed and the decree reasons,
For aforesaid directions cause is remanded to the trial court with and to de- defendants’ motions to dismiss order overrule fendants to answer. remanded, with directions.
Reversed Mr. dissenting: Schaefer, Justice It seems to me when a large corporation pur- the fate a smaller one, chasing employees matter of will be a concern selling naturally corporation its of concern ex- here, It was a matter management. to the “lower taken with pressed exception respect level executive do not find that I personnel.” agreement ever reached to that matter. Nor was ever reached as to the employment compensation these reasons Conroy by For corporation. purchasing think I no contract existed and that the judgment the trial court should be affirmed.
Mr. also Bristow, dissenting: Justice I must dissent from the respectfully majority opinion in this case. I with the set in the disagree out premises and the conclusions of law based thereon.
This case comes to us on the motions of the defendant and of the corporation defendant Charles Conroy, L. president of the general dis- manager corporation, miss plaintiff’s amended complaint specific performance, in the or, alternative, money damages against Conroy alone, on an alleged between the and the de- fendants.
The original was for complaint specific performance It only. was predicated the solely upon five letters subse- relied quently in the upon amended four of complaint, which are mentioned in the majority opinion. plain- tiff that the alleged first four letters between the parties, under date of February 20, February March 14, and April 1956, constituted “a contract between defendants Anchor.” defendant of sale of the assets for the and plaintiff filed Pritsch defendant original the complaint It was to costs without in the complaint in effect answer, joining to dismiss the motions him. To that complaint separate were sustained. individually, the Conroy, corporation that the had failed allege The trial court held therefore, and, a contract capable specific performance, such not decide the further as to whether question did cor- could enforced the contract, completed, against defendant. porate thereafter filed its amended It
Plaintiff ap- complaint. from the record that Pritsch filed whatso- no pears pleading ever this amended which before us now. complaint The trial court sustained the again motions separate defendant Conroy to dismiss corporation amended complaint specific performance, including count for alternate money damages, on the same essentially the motions were sustained to the grounds original complaint.
By defendants’ motions to dismiss the amended com- plaint contentions, following among others, are made: There nowas (1) the minds meeting between the par- ties to alleged contract; (2) of Frauds and Statute evidence rule parol excluded the oral conversations pleaded; (3) specific performance will not lie to compel sale the corporation’s assets on the alleged the two individual controlling stockholders.
It is conceded by the plaintiff, recognized majority opinion, there is no binding contract between these as the except same be may established by parol evidence explanation of the correspondence.
For the purpose this dissent, it is necessary set out the substance of these letters from which I conclude that their literal and legal interpretation does not warrant *12 minds a of ever meeting was that there conclusion into entered ever was an agreement or that This is of them. or either defendants by
in writing letters: of these by language demonstrated clearly be summarized: may and meaning Their import to the corporate February 20, letter of Plaintiff’s for to is a purchase $100 Anchor proposal defendant the con- Anchor’s assets all of buy sixty-day option is added an accept- this letter set out. To therein ditions forth set “The memorandum clause: ance all to acquire for 60 days you option above, granting set terms and conditions assets on the of our business and Anchor Coup- hereby are forth, accepted agreed check for your Inc., receipt $100.00 ling Company, never hereby acknowledged.” option proposal or executed. accepted under date
The letter of and Fritsch Conroy plaintiff, “We February 29, 1956, explicit: unwilling to as enter into a formal with your proposed option company This letter your which February 20th, 1956.” was on the letterhead of but corporation, signed con- reads: “You Conroy Fritsch, individually, may sider this as a letter of intent you make authorizing deem a firm and survey you necessary to make your one;” and binding to be requires investigation kept secret from at and in everyone Anchor, trade, Anchor’s and Fritsch. Then it except Conroy assures should it make “firm from offer” within this days date, Conroy and Fritsch would be to enter into willing contract with for on certain terms and $4,025,000 conditions taken from the earlier refused option proposal, but subject to foúr additional terms and specific provisions, referred to as which are set “exceptions” out the court’s opinion exceptions (a), (b), (c), (d). Plaintiff’s letter of March and Fritsch acknowledges of their letter receipt assures February 29, re- be on the audit would its investigation them “minor out two then basis, points confidential quired is so distorted first of which clarification, matters” You set forth here: “1. that it is majority in the outlined will accepted offer on the basis that our indicate *13 The date date.’ from fifty days made ‘within this as recall you will 29, you letter was but your February Wednesday, us until the- held off it to mailing following For reason we not able to start March this were and while have, as as we otherwise survey eqrly might effort be it even will made to within every complete it should shorter seems to us that the fifty days period, from date March and will therefore April expire * * * may we on that we proceed will understanding mail our offer on you the terms letter your within: 26.” The second matter clárification April on which was was price. letter mentioned sought February flat letter price $4,025,000. The of February 20 sought option each to $4^23,500, re- plus support $500 strictive covenants from Conroy, Fritsch, and one Leubke- man. Leubkeman was eliminated from the restrictive cove- nant by so the exception (c), price suggested $4,024,000, $1,000 to plus support restrictive covenants of Conroy and Fritsch. Conroy and Fritsch to these agreed clarifica- tion by initialing a carbon of returning as letter, requested by plaintiff.
The substance of plaintiff’s to the defendant, under date of April 26, 1956, out in set the majority opinion, as I but, view the it, essence of this letter has been mis- apprehended.
Pleaded as a part of plaintiff’s amended complaint Borg-Warner’s letter under date of July ad- dressed to Conroy, which letter is not alluded majority opinion. Although this letter is a self-serving it is declaration, to note interesting it (1) shows that negotiation was carried being on to reach agreement as to these on that agreement (b); (2) (a)
exceptions For ex- been reached. had not yet terms required open it says Conroy’s (b), employment, as to exception ample, it can am sure mind, I remains your “if any question of lower retention (a), As answered.” exception be three there are two executives, says: it “although level felt problems no unsurmountable cases, you questionable We lower level executive personnel. remained to the * * * basis for a fair can mutually develop believe we * * * or three As to two their continuing employment. consideration should where felt some further salaries you told that we would be I were you open-minded given, certainly into this with further.” Most you go glad letter does not establish a this completed agreement 26, 1956, just contrary. but April concludes this court analyzing correspondence, Fritsch’s letter of was a February 29 it counteroffer, because “varied terms of plaintiff’s offer” 20. This infers February plaintiff’s proposal *14 an fact, in an purchase was, offer to option purchase it assets, Anchor’s which was not. The plainly to proposal an purchase option rejected explicitly by Conroy Fritsch.
Then the court reasons that and Fritsch’s letter Conroy is February to be as an in construed offer and of 29 itself. This is reasoning based the use on phrase “firm and offer in binding” wherein the paragraph stockholders authorize controlling plaintiff make the sur- vey, without which would not consider an making offer to purchase Anchor’s assets. This letter, my opin- is not ion, an nor a counteroffer but an invita- merely tion to plaintiff make an offer. paragraph wherein is phrase “firm used, and binding” offer, is clear and explicit, this is phrase employed merely to differentiate the offer invited from the plaintiff purchase —one
251 offer to option. plaintiff’s previous purchase assets —from February letter of of the Indeed, only paragraph invited from intent, the offer plain- contractual expressing that are assured firm offer,” “you as “a tiff was expressed — ** * we days make firm offer within should you into with are to enter a contract you.” willing from February can find in the letter of I nothing Fritsch warrant the statement in the majority Conroy this Most of text of that letter ambiguous. opinion this letter is set out in the In it, Conroy opinion. on Fritsch out the terms which are they willing spell There contract. can be no but that this letter is question of the contract, because the starting point alleged op- tion made the letter cate- 20 was proposal February thus an end to it. The gorically rejected, only putting letter of here serve as a purposes February are circumstance and to certain terms background supply were from it incorporated into and Fritsch’s letter of February 29.
The record here that Conroy and Fritsch explicit would contract only if: That suitable are “(a) assurances for the given retention of the lower level executive per- sonnel; (b) mutually satisfactory arrangements made for the continued employment Charles Conroy.” L.
There is no in these ambiguity requirements. It is explicit patent this record that the parties have never agreed on these two conditions. The only “ambiguity” uncer- tainty can arise is in the determination of these require- ments the absence of mutual agreement themselves.
The majority lifts a quote from plaintiff’s of March 14, “You indicate that our offer on the basis *15 outlined will be if accepted made ‘within from days 50 ” this date.’ The most that can be said about this letter is that it asks for an extension of time to April and that clari- which to $4,024,000, be adjusted price
the purchase they when Fritsch and by were accepted fications requested. this letter as initialed March February 29, February letters of The of plaintiff’s made a paragraph 26 are part and April contains This paragraph reference. by complaint amended Fritsch, response that Conroy further allegations that their agent, by assured inquiry, plaintiff, to an the letter that with effect an had “in optionand plaintiff came into being.” contract 26 “thereby completed of April these allegations, intimates majority opinion a completed a finding sufficient to “are support proved, submitted time at the plaintiff came into existence 26.” formal offer on April its to be letter of April The court considers plaintiff’s or it be “acceptance” If construed an “acceptance.” its is bound in either case “formal offer” as a this our formal “Please consider The letter says terms. in accordance into an to enter therefore, offer, 20th, February of March you 14th, with our lettrs to us February letter to your 29th.” formal and it then, explicitly This, plaintiff’s letters,— earlier it is the three made in accordance with says utterances reliance oral any pleaded. upon will “formal offer” of plaintiff explicit letters to in accordance with our “enter into an agreement 20th, your of March 14th, February you oral utterances any and not February 29th,” upon defendants or their agent. “All
Indubitably the law conversations parol is: written agreements-between agree- parties prior ment are so therein that cannot merged they given evidence for the the contract show- purpose changing that ex- intention or different from ing..an understanding in -the written Com. on pressed. Evi- agreement. (3 Jones’ dence, Paint (Armstrong sec. and Varnish Works 434.)” *16 253 “This is hornbook 102, 106.) Can Ill. Co. Continental 301 much though authority, citation and no requires principle Citro, App. 479, Ill. Clubine available.” v. is 481. 238 estab- firmly this fails to apply majority The con- any it, case. Applying rule law to the present lished in embodied are the formal offer versations leading up or defendants, of these utterances and oral this writing, in evidence thereto, competent their agent, prior this case. be- March 1, conversation of 1956, follows that the
It is in- and Fritsch Conroy and the tween agent in as a testimony basis of an allegation competent 10 May this case. The two later conversations 8 July the minds by seek show a evidence. parol meeting is is no but that the of Frauds There Statute question here and that based evidence parol allegations applicable such evidence must be excluded. upon This court has decided too for the rule to many times “to enable a questioned: to a contract for any party interest land enforce the of it the specific performance must be in this means that the whole writing, contract must be that all written, so its terms and provisions can be ascertained from the without writing itself, necessity of resort to extrinsic evidence.” (Daytona Development Gables Co. Glen v. Flora Investment Co. Ill. Gronowski 371, 394; owicz, v. Ill 266, 345 Jozef 291 v. 277; Boas, Sallo Ill. 149; Westphal 145, Buenger, v. 327 Ill. 77, 79; Newcomer, v. Ill. 189, 194; 324 Peiffer 326 Kopprasch Satter, v. 126, 128; Ill. Hanlon v. Hayes, 331 Ill. 362, 368.) a contract Moreover, within the Statute 404 of Frauds cannot be partly writing oral. partly Whitelaw v. Brady, Ill.2d Hanlon 583, 591; v. Hayes, 3 Ill. 368; Daytona Gables Development Co. Glen v. 404 Flora Investment Co. Ill. 371, v. Kopprasch 394; 345 Satter, 126, Ill. 331 Over and beyond these applications of the is the statute,
254 only contracts for the sale of land not that in
further one au be in but the the entire contract writing agent’s must be in to make the contract must thority writing. (Kopp also Dearlove, Kozel v. Reiter, 444, 445; 437, Ill. v. 26; Koren, Lipkin 400, v. Ill. Leach 23, 407; Ill. 25, Hazel, shown in Ill. 33, 37, Nothing 38.) whose conversation agent amended complaint had either authority March pleaded writing, from Fritsch, from Anchor. have with which we rigidity Statute applied *17 in Metals v. Ingot
Frauds shown Western Co. Hartman Metal Co. held Ill. There we that 479, unsigned 303 cannot be to connected a unless writings signed writing, referred one said to the so We signed. there expressly if we went further “then the becomes that contract partly we written, oral have then introduced all partly the mischiefs the which of Frauds and Perjuries Statute * * * intended to think the established prevent. We a wise one rule and will not from it.” depart Such rigidity with equal reason to oral extrinsic as to con applies proof necting writings. their decision the reaching majority have said “it is to great reliance other cases
impossible place on except as they insofar state general of law.” ex- principles can serve pression only to bewilder those who look courts to establish reviewing precedent. Unless our- we, are selves, else guided precedent how can we arrive at our decisions ? And unless we establish precedents given situations, factual how else can the trial and lawyer, judge or scrivener, find in the guidance accomplishment of their tasks daily ?
Contrary what the majority says, there a mass of precedent here, factual governing situation presented the conclusion that compelling no contract was formed. For example, omitted from the majority’s quotation from Prof. Corbin (1 Corbin on 1st Contracts, ed., 1950, sec. 29, include is this statement: “Communications 66) p. fail to consummate may of mutual expressions not some they complete, for the reason that contract Frequently included. agree been essential terms not having and items different terms arrived at ments are piecemeal, As separately. long discussed and agreed upon being not term yet know that there is an essential agreed on there is on, contract; preliminary agreements no items are mere up preliminary negotiation building specific the terms of the final not made.” may may be And in Whitelaw v. Ill.2d we “It Brady, said: 583, 590, is not for for a contract on unusual, however, negotiations subject matter series counter- any proposals each between differences narrowing proposals par ties on certain matters and others future leaving open determination.” Upsal A similar statement appears Rubin, Street Pa. Realty Co. Atl. 481: “It is not unusual for with persons agree negotiate view into contractual relations and to reach entering at an accord once as to certain major items of the proposed then later find other details can they In such cases agree. no contract results.” Prof. Corbin says further Corbin (1 on Contracts, sec. : “In p. 54) process of negotiation use party may *18 words that alone standing would be normally understood to words of ‘contract,’ at the same time them limiting in such way as to that a say subsequent expression assent on his part required. such case the expression is neither an offer nor an operative operative acceptance; it is preliminary negotiation. Thus, a written proposal many stating terms bemay made ‘subject on agreement’ another specified matter; or it may be said: ‘I reserve final determination for tomorrow.’ Words such these will in nearly all cases be held to show that an operative assent has not satisfactorily been given.” (See, too, 1 Cor bin on Contracts, sec. 24, p. 58.) Like expressions appear
256 ed., sec. 45, Rev. (1 Contracts,
in Williston Williston of the the Restatement (Restatement Law. p. 131,) are number There chap. 3, 31, sec. Contracts, 25, pp. 32.) here, involved those less cases facts similar to involving them are: that no contract formed. holding Some Paper Kane, Regis St. N.Y. Ansorge 395, 397-400; v. 244 & P.R.T. Paper Hubbs N.Y. 30; Co. v. Co. Hastings 235 Inv. Corp. Ranft, 315-19; v. Mo. S.W.2d 522, 252 363 v. Newcomer, Springer v. Ill. 189, 197; 195, Peiffer 326 Campbell Co. Ill. 278, 281. App. 174 of a in
It is well established that the court province as made suit is enforce a contract specific performance make a for them and and not to contract then to thus v. (White Lang, enforce contract made. 186; Morris Goldthorp, Ill. 219; Ill. v. 401 390 As a basis for Wickwire, Shaver v. Ill. 46.) specific 335 there must be not contract performance only binding but said contract in itself without must be complete Young for further necessity negotiations agreement. Newcomer, Kowske, v. Ill. 114; Ill. v. 189; Peiffer 402 326 v. Westphal Buenger, Ill. 324 77. It also seems that a well established court will appear deny of a fur specific performance involving services, where the nishing service personal especially the exercise of mechanical intellectual requires skill, ability or the exercise of that a court will judgment, not, a decree of ah specific performance, compel employer hire or an employee' work his will. Barker v. against Truitt, Ill. Clark v. Hauberg, Ill. 538; affirm 325 Truitt Clark, ing v. 81 Ill. Wollensak App. 652; Briggs, v. Ill. 20 Ill. Cowen affirming v. App. 50; McNealy, Ill. App. 179; Chicago, Milwaukee, Paul St. Ledford Railroad Co. Ill. App. Pacific In my principles specific concerning perform- ance a contract involved this case are clearly announced properly applied the recent decision this court *19 2d The court there Breznik, recognized Ill. 168. Cefalu contract or the question performance part be not question valid was existence of a sole but that case, in a specific resolved perfomance was whether the agreement alleged or question certain in its terms definite and sufficiently specifically enforceable.
The admitted facts in the case establish present there was the for further necessity negotiations agree- ment other terms of em- including, among things, personal It my ployment. majority opinion case this reaches a result contrary established long prin- ciples law.
(No. 35022 . City Chicago Trust Schools, Use Appellee, vs. Appellant. L. Riley, Beulah
Opinion March filed