delivered the opinion of the court:
This appeal comes to this court from the circuit court of Sangamon County, questioning the propriety of an order of that court which vacated an order and decree theretofore entered which the appellant claims approved in advance the sale of an asset known as the Esquire Apartment Hotel in Fort Lauderdale, Florida, in accordance with the requirements of a certain deed and indenture of trust. A freehold being involved, the appeal is taken directly to this court.
Orville E. Hodge, formerly Auditor of Public Accounts of the State of Illinois, in the summer of 1956, admitted the conversion to his own use of State funds. By deed and indenture of trust dated August 31, 1956, executed by Orville E. Hodge, Margaret C. Hodge, his wife, and Lloyd Morey, as trustee, the said Orville Hodge and his wife conveyed certain assets, including the Esquire Apartment Hotel, in Fort Lauderdale, Florida, to the trustee for the purpose of liquidating the assets and paying over the avails, after costs and expenses, to the general revenue of the State of Illinois. The deed and indenture of trust provided two methods of sale for liquidation of the assets. It authorized
The trustee thereafter twice attempted to sell this property at public auction pursuant to the publication required by the indenture. Upon each occasion no bids were received. At one of these sales the attorney for Mrs. Hodge made known certain claims she professed to have against this and other assets, implying that bidders were acting at their peril.
Mrs. Hodge had made claim to the furnishings of penthouse “A” in the Esquire Apartment Hotel, and failing to arrive at an amicable arrangement with the State of Illinois, she filed suit in the circuit court of Sangamon County to set aside portions of the deed and indenture of trust. So far as we can ascertain, that cause remains pending and has,no bearing upon the merits of this cause, except insofar as it relates to an area of unresolved terms of this purported sale.
Being unable to accomplish liquidation by public sale, the trustee, by his agent, The Northern Trust Company, attempted a private sale. Independent appraisal fixed the fair cash market price at approximately $550,000. On December 5, 1956, the trustee received an offer to buy from the Michigan Typesetting Company for $550,000, accompanied by a check in the amount of $55,000. The Attorney General of the State of Illinois, as attorney for Eloyd Morey, the trustee, accepted this offer by letter dated December 17, 1956, pursuant to certain conversations with the buyer’s representative, subject to court approval, and the ability to deliver title and a guarantee policy. The terms
The trustee and the buyer were unable to resolve these differences and execute a final agreement. On March 7, 1957, the Attorney General informed the buyer, that unless a final contract was executed by March 15, 1957, no alternative would be left but to set aside the decree and start again to sell the property.
On March 18, 1957, the trustee received a firm offer to purchase the asset for $575,000, from a second buyer.
Subsequently, on March 20, 1957, the trustee filed a motion to modify and to vacate a portion of the decree theretofore entered. The State Treasurer and the Attorney General then moved for rehearing, retrial, modification, or vacation of the decree. The Michigan Typesetting Company moved to strike the motion of the trustee, and filed
The parties have raised no question as to the original jurisdiction of the circuit court as it may be regarded as stemming from the trust agreement. We find it unnecessary to consider or determine that question because, as we view the matter, whatever may have been the original status, the counterclaim and the reply thereto presented the issues typical of an ordinary action for specific performance, of which the circuit court unquestionably had jurisdiction.
The fundamental question which governs the determination of this cause is whether an enforceable contract exists between the trustee and the Michigan Typesetting Company. To be enforceable the contract must be so definite and so certain in all of its terms that a court can require the specific thing contracted for to be done. The terms must be clear, certain and free from ambiguity and doubt. (Leach v. Hazel,
The Michigan Typesetting Company contends, however, that this is a judicial sale approved by the court, and hence the rules of law relating to judicial sales apply to preclude the vacation of the decree of approval. The decree entered by the circuit court on February 26, 1957, is not a final approval of a judicial sale or any other kind of sale, complete in all of its terms and conditions. The indenture of trust requires that any private sale be approved in advance by the court, and that no order approving such sale could be entered without proof, by testimony, affidavit and such additional evidence as the court may require, that no reasonable likelihood exists of obtaining a higher or fairer price. That decree approved the amount of the sale price offered by the Michigan Typesetting Company, but it specifically found that the parties had not entered into an agreement
By the very terms of that decree the sale arrangement between the Michigan Typesetting Company and the trustee remained executory. An agreement which does not purport to give an absolute right without further negotiations thereon cannot be specifically enforced. (Young v. Kowske,
The parties clearly understood that the sale proceedings remained executory after the entry of the decree. The uncontradicted testimony and the number of letters and proposed agreements in evidence clearly demonstrate this fact. Moreover, the trustee informed the purported buyer on March 7, 1957, that unless a final contract was determined and executed not later than March 15, 1957, it would be necessary to set aside the decree and start over again to sell the property. This notice was several days prior to receipt of the second and higher offer to purchase, received by the trustee on March 18, 1957. It thus obviously appears that the receipt of a higher price offer was not the determining factor which prompted the motion to vacate and set aside a part of the decree.
After the entry of the decree of February 26 the parties continued to negotiate in respect to the terms and conditions of the sale; they conferred, made written proposals, and attempted to arrive at an agreement. Appellees admit in their brief that the sale was not completed. They state that the decree appealed from involved no findings of fact which need be disputed. The findings of fact there state the fact to be that no agreement for sale of the asset was ever entered into, and that the trustee at no time executed any writing or made any agreement accepting any specific
The sale arrangements here remained executory, numerous specific and material terms and conditions of the sale were undetermined, and the decree did not fix such terms and conditions. The decree did not purport to approve or assent to an executed enforceable sale of any kind. Therefore the question as to whether the rules governing judicial sales would be applicable in case the parties had arrived at a completed sale does not need to be determined here.
The order of the circuit court of Sangamon County is, therefore, affirmed.
Order affirmed.
