Koenig v. Dohm

Mr. Justice Magruder delivered the opinion of the court: Appellee, Augusta J. Dohm, the wife of appellee, William Dohm—the latter being the owner of the real estate in controversy—had no authority in writing to sign her husband’s name to the written contract for the sale of the premises to the appellant, Mathias Koenig. The main defense, made by the appellees against the specific performance of the contract in question, is that Mrs. Dohm, acting as agent for her husband William Dohm, had no such written authority, and that, therefore, the contract was void under the Statute of Frauds. Hence, the material question to be determined is, whether the defense, thus set up, is a good one under the facts of this case. First—It is first insisted by the appellant, that the Statute of Frauds was not properly set up as a defense in the answer or answers. Where a contract is alleged to be invalid as being in violation of the Statute of Frauds, it is merely voidable, and may be enforced xas made, unless the defendant takes advantage of the statute by setting it up as a defense either by demurrer, plea or answer. (McClure v. Otrich, 118 Ill. 320; Esmay v. Gorton, 18 id. 483). But, in pleading- the Statute of Frauds, it is not necessary to make an express reference to the statute by its title, or otherwise. It is enough to state facts sufficient to show that the defendant seeks the protection of the statute; and the plea or answer, setting up the statute, should expressly aver that the contract or authority to make the contract was not in writing. (Schoonmaker v. Plummer, 139 Ill. 612; 9 Ency. of PI. & Pr. pp. 713, 715; Wright v. Raftree, 181 Ill. 464). We think that, in the original and amended answers in this case, the Statute of Frauds is sufficiently pleaded to enable the appellees to avail themselves of its provisions. Section 2 of the Statute of Frauds provides, that “no action shall be brought to charge any person upon any contract for the sales of lands * * * unless such contract or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person, thereunto by him lawfully authorized in writing, signed by such party.” (2 Starr & Curt. Ann. Stat.—2d ed.—p. 1997). The original answer of the appellee, William Dohm, filed herein on May 3, 1902, contains the following allegation: r“that he has offered to return said $500.00 to Koenig, and notified him that he made no such bargain or agreement, nor did he authorize his wife, or Thekla Schwartz, or any other person, either orally or in writing, to make any bargain for the sale of the said real estate, but that Koenig declined and refused to accept the $500.00.” The amended answer of appellee, William Dohm, filed on August 27, 1902, contains the following allegation: “That this defendant’s wife, when she signed the said alleged contract for the sale of the property described in the bill, had no authority in writing from this defendant, nor memoranda thereof for the sale of said property.” While the Statute of Frauds is not expressly referred to in the above quoted allegations of the answers, yet the language used negatives the existence of the fact, required by the Statute of Frauds. The requirement of the statute is, that the “contract or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.” The person, here signing the contract as agent for the owner, William Dohm, was Augusta J. Dohm, his wife, and it is stated, in substance, that she was not authorized by him in writing to make any contract for the sale of the land in question. To be sure, the word, “bargain,” is used, but that word is broad enough in its meaning to include “contract.” The word “bargain” is defined in Webster’s Dictionary as “an agreement between parties concerning the sale of property; or a contract, by which one party binds himself to transfer the right to some property for a consideration, and the other party binds himself to receive the property and pay the consideration.” “Bargain” is also there defined as “an agreement or stipulation of any kind.” Second—As has already been stated, there is no evidence to show, nor, indeed, is any claim made by the appellant, that Mrs. Dohm had any authority in writing to sign a contract for the sale of the property in'question. It is true that, when the written contract made with appellant was signed by Mrs. Dohm, the appellant handed to her a check, payable to the order of William Dohm, and, on the evening of the day on which the check was received, or on the morning of the next day thereafter, the appellee, William Dohm, endorsed the check. His endorsement, however, of his name upon the back of the check was no such note or memorandum in writing, as is required by the statute. In Kopp v. Reiter, 146 Ill. 437, where it appeared that the husband of the owner of a lot made a written contract for the sale of it without any written authority from his wife, and where it appeared that the purchaser made a payment of earnest money, amounting to $260.00, it was held that a deed to the purchaser, afterwards signed by the wife, which made no reference to the contract, and failed to express its terms, and which she deposited with her husband to be delivered on certain conditions, but which was destroyed without delivery, could not be regarded as such a memorandum or note of the original contract, as to take the case out of the Statute of Frauds. In Kopp v. Reiter, supra, the authorities were reviewed, and it was there held that, while no form of language is necessary in order to determine what sort of writing is sufficient to meet the requirements of the statute, if only the intention can be gathered, and that any kind of writing from a solemn deed down to mere hasty notes or memoranda in books, papers or letters would suffice, yet “that the writings, notes or memoranda must contain on their face, or by reference to others, the names of the parties, vendor and vendee, a sufficiently clear and explicit description of the property to render it capable of being identified from other property of like kind, together with the terms, conditions (if there be any,) and price to be paid, or other consideration to be given; and such writing, note or memorandum must be signed by the party to be charged, or, if signed by an agent, the authority of such agent must be in writing, signed by the party to be charged, and the contract or memorandum or note thereof made by the agent must also be in writing, and signed by him.” It was also further held in that case that, where a deed, executed by an owner of land and not delivered, is held to be a sufficient memorandum of a contract of sale under the statute, it will be found to contain or refer to the terms and conditions of the contract. It cannot be said that the mere endorsement of the name of William Dohm, the owner, upon the check, given for the earnest money, complies with the requirements of the statute as thus set forth. (See also Browne on the Statute of Frauds,— 5th ed.-—sec. 3546). Third—The mere fact, that the appellant, Koenig, paid the sum of $500.00 as earnest money, and that the same was accepted by the appellee, Dohm, is not sufficient to take the case out of the Statute of Frauds. The $500.00 was a part, and only a small part, of the purchase money agreed to be paid. It has been decided by this court that an oral sale of real estate may be taken out of the Statute of Frauds “by a payment of the purchase money, being let into possession, and the making of lasting and valuable improvements.” (Wright v. Raftree, 181 Ill. 464; Holmes v. Holmes, 44 id. 168; Ferbrache v. Ferbrache, 110 id. 210; Pond v. Sheean, 132 id. 312). But whether or not it is necessary to go to the length of requiring all of these acts, to-wit, payment of the purchase money, possession, and valuable improvements, in order to constitute such a part performance of the contract as to justify a decree for specific performance, it is certainly true that a payment of the purchase money alone, without either possession or improvements, is not such a part performance, as to take the case out of the statute. In Temple v. Johnson, 71 Ill. 13, referring to the general rule stated by Story in his work on Equitable Jurisprudence, we said: “He says that, although formerly a payment of the purchase money was considered a sufficient part performance to take the case out of the statute, the rule is now otherwise settled, and in this he is fully sustained by the adjudged cases, both in the British and American courts.” What was said upon this subject in Temple v. Johnson, supra,, was subsequently approved in the case of Pond v. Sheean, 132 Ill. 312. (See also Gorham v. Dodge, 122 Ill. 528; Morrison v. Herrick, 130 id. 631.) In the case at bar, appellant did not take possession of the premises under the oral contract, nor make any improvement thereon. If, as is held in the cases cited, a court of equity will not decree the specific performance of a parol agreement to convey land where the purchaser has merely paid the purchase money without going into possession under the contract, it certainly cannot be held, that his payment of a small part of the purchase money is a sufficient part performance to take the case out of the statute. Fourth—Appellant, however, in support of his contention, that he is entitled to a decree for specific performance in this case, invokes the doctrine of equitable estoppel. It is claimed that the appellee, Dohm, made false and fraudulent representations to Koenig- as to his wife’s authority to execute the contract, and that, inasmuch as appellant paid the earnest money and received the abstracts of title for examination in reliance upon these alleged false and fraudulent representations, appellee, Dohm, is estopped from denying the validity of the contract. There are cases, which hold that verbal sales of land are taken out of the Statute of Frauds by an application of the doctrine of equitable estoppel. But where this doctrine is applied, it is for the purpose of preventing the Statute of Frauds from being used for the perpetration of the frauds the statute was designed to prevent. (Mills v. Graves, 38 Ill. 455.) There must, how-e'ver, be something more than the moral wrong of ref using to be bound by a verbal agreement. A man, who makes an oral contract to sell land, and violates his agreement, and relies upon the Statute of Frauds in order to justify himself in its non-performance, may be guilty of a wrong in the domain of morals, but not of such a fraud as relieves against the application of the statute. In his work on Specific Performance of Contracts Pomeroy (p. 202,) says: “There must be some positive act of contrivance, deceit, false representation or concealment on the part of the defendant, by which the plaintiff is prevented from insisting upon or obtaining a written contract, or is induced to accept or rely upon a parol agreement in place of that required by the statute.” We can see no reason why it should be regarded as any greater wrong in point of morals for a man to refuse to carry out a contract to sell or convey land, made by an agent having only verbal authority, than to refuse to perform an oral contract for the sale or conveyance of land, made by himself without the intervention of any agent. We see nothing in the facts, presented by the present record, which justifies the appellant in invoking the doctrine of equitable estoppel, for the reason that there is nothing, which shows any positive act of fraud or false representation on the part of Dohm. He stated to Koenig that the latter should call upon his wife and mother-in-law,- and that, if they were satisfied, the contract could be signed for him by his wife. Dohm was a butcher, and was obliged to be at his work during the whole of the day. The testimony shows that he went to his work as early in the morning as four o’clock, and was, therefore, unable to spend the time to attend to such a matter of business as this. He accordingly directed the appellant to go to his home, and see' his wife and mother-in-law, and stated to him that, if they were satisfied, a contract could be made out, and his wife could sign it for him (Koenig.) He made no representation that his wife had any written authority from him to sign a contract. If his statement amounted to a representation that she had authority to sign a contract, it cannot be regarded, in view of the language used, as anything more than a statement that she had oral authority from him to sign it. In the absence of false and fraudulent representation on the part of Dohm, the doctrine of equitable estoppel, in order to relieve against the Statute of Frauds, has no application here. As is well said by Pomeroy in his work on Specific Performance of Contracts (p. 202): “The moral wrong in refusing to be bound by a verbal agreement, because it does not comply with the statute, is not the fraud intended by this equitable principle; if it were, the statute would be rendered entirely nugatory.” Fifth—Some stress is laid upon the fact, that Schwertfeger, when he took his contract and deed from appellees, had notice of the previous contract made with the appellant.. The proof does show that he had such notice, but, in view of what has been said, it makes no difference whether he had notice or not. Notice, actual or constructive, of a contract, which is void under the Statute of Frauds, will not prevent the person, having such notice, from becoming a purchaser of the property from the original owner. Where the owner may lawfully refuse to perform a contract, he may lawfully sell and convey to another, and, by so doing, repudiate the contract, and the purchaser from him will not be affected by the prior sale, rendered void by the Statute of Frauds. (VanCloostere v. Logan, 149 Ill. 588; Wright v. Raftree, 181 id. 464.) We are of the opinion,- for the reasons above stated, that the Statute of Frauds was correctly treated by the court below as a defense against the specific performance of the contract here involved. Accordingly, there was no error in the decree, dismissing the bill for want of equity; and that decree is affiimed. Decree affirmed,.