242 Ill. 434 | Ill. | 1909
delivered the opinion of the court:
The Statute of Frauds having been pleaded, it was necessary for the complainants to produce a contract, or some note or memorandum thereof in writing, signed by the defendants, or some other person thereunto by them lawfully authorized in writing signed by them. The authority of Benjamin A. Patterson Sufficiently appears from the writing of October 16, 1908. It was not, however, a contract of sale. The statute further requires that the contract entered into for the sale of the land, or some note or memorandum thereof, shall also be in writing. (Fletcher v. Underwood, 240 Ill. 554; Lasher v. Gardner, 124 id. 441.) No particular form is necessary to constitute the memorandum required by the statute. An admission in writing of the .making of the contract is sufficient, and the writing need not all be on one piece of paper. It is essential, however, that the writings contain everything necessary to show the contract between the parties, so that there be no need of parol proof of any of the terms or conditions of the sale or the intention of the parties. The contract cannot rest partly in writing and partly in parol but the written memorandum must disclose all the terms. (Doty v. Wilder, 15 Ill. 407; McConnell v. Brillhart, 17 id. 354; Farwell v. Lowther, 18 id. 252; Esmay v. Gorton, id. 483; Lasher v. Gardner, supra.) The undelivered deed to Hartenbower executed by the heirs of William Patterson other than the defendants contains no conditions whatever and makes no mention of the terms of the contract under which it was made. It purports to be simply a conveyance of the land. It is no memorandum or note of the contract. Kopp v. Reiter, 146 Ill. 437; Shovers v. Warrick, 152 id. 355.
Neither is the notice that was served on appellants any memorandum or note of a contract of sale. That notice merely informed appellants that a deed which had been presented to them for execution, conveying the land in question to Henry F. Hartenbower for the consideration of $12,720, would be at the bank in Tónica for ten days to give them an opportunity to execute it, and that if they did not do so Benjamin A. Patterson would commence suit for the specific performance of the agreement of October 16, 1908, for costs and damages, for their failure to execute said deed pursuant to said contract. They had not agreed to execute this deed by the contract referred to. This notice did not state that Benjamin A. Patterson had made a contract for the sale of the lands or that Hartenbower had bought it. It does not, on its face, purport to relate to any contract of sale. The mere demand that the heirs execute a deed did not amount to evidence of a contract for the sale of the land. To satisfy "the requirements of the statute it is essential that all the material terms and conditions of the contract appear in writing without the necessity of resorting to parol evidence. Leave out the parol evidence of the auction sale and there is no evidence in this record of any sale to Hartenbower.
If the notice were otherwise sufficient as a memorandum of a contract of sale to Hartenbower it is defective because it does not require the payment of ten per cent of the purchase money in cash on the day of sale. An owner of land has the right to prescribe the terms on which he will sell, and his agent has no authority to make a contract of sale on different terms from those prescribed. If the written authority to the ag'ent to sell fixes the amount of the cash payment and the amount and date of the deferred payments, he has no authority to make a contract for a different cash payment or for deferred payments of different dates or amounts. (Oliver v. Sattler, 233 Ill. 536; Monson v. Kill, 144 id. 248; Hoyt v. Shipherd, 70 id. 309.) The deed shows that one of the heirs lived in Missouri and another in Oklahoma. The conveyance could not be made until after the sale was made and the name of the purchaser known. The authority was to sell for ten per cent cash and the balance on the delivery of a warranty deed. This authorized the making of a contract for sale for ten per cent cash and the balance in such reasonable time as might be required for the execution of the deed by all the parties. The notice contains no allusion to any such tenns and noth- . ing from which it can be inferred that any cash payment was to be made before the delivery of the deed. It is said by appellees that the evidence shows that a cash payment of ten per cent was made. It is not a question, however, of what may be proved by parol to have been done but what the written contract shows. The Statute of Frauds being pleaded, a contract or memorandum in writing must be shown. The writing authorized the agent to make a certain contract and the contract shown must be in conformity with the authority conferred. If it is not, then it is unauthorized and there is no contract or memorandum signed by any person lawfully authorized thereto.
The decree of the circuit court will be reversed and the cause remanded, with directions to dismiss the bill.
Reversed and remanded, with directions.
