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sonable doubt, and it affirmatively appears that performance contingent on complainants' ac possession was taken under the contract. cepting the conditions prescribed.

(Ed. Note.-For other cases, see Specific Per [Ed. Note. For other cases, see Specific Per. formance, Cent. Dig. § 389; Dec. Dig. w121 formance, Cent. Dig. 88 406, 407, 409, 410; (2).]


JURISDICTION. In a suit for specific performance of an oral

A court of equity, having acquired juriscontract, evidence as to the terms of the con- diction to decree specific performance, will retract and possession thereunder held not suffi- tain jurisdiction for the purpose of giving recient to entitle complainant to the relief asked. lief, to which the parties are entitled and

[Ed. Note:--For other cases, see Specific Per settling the whole matter. formance, Cent. Dig. $ 394; Dec. Dig. 121

[Ed. Note.-For other cases, see Equity, Cent. (9).]

Dig. $8 104-109, 111, 114; Dec. Dig. 39

(1).] 4. VENDOR AND PURCHASEB C 35-FRAUD Cooke and Duncan, JJ., dissenting. TITLE OF VENDOR.

The fact that the title to property was Appeal from Circuit Court, Cook County; placed in the name of a trustee does not show fraud, where the contract with the purchaser Thomas G. Windes, Judge. was executed by the real owner in the name of Suit by John J. Wolf and another against the holder of the title.

Helen Lawrence and her in which John (Ed. Note.-For other cases, see Vendor and P. Casey filed a cross-bill. Judgment for the Purchaser, Cent. Dig. 88 45–51; Dec. Dig. Om complainants on the original and cross bills, 35.)

and defendants appeal. Reversed and re5. FRAUD 58(1)--PROOF-SUFFICIENCY. manded, with directions.

While fraud may be proved by circumstances, it will not be presumed, but must be proved George P. Merrick and Clinton Merrick, as a fact by such clear and convincing evi- both of Chicago, for appellants. Beauregard dence as leaves the mind well satisfied.

[Ed. Note.- For other cases, see Fraud, Cent. F. Moseley, of Chicago, for appellees. Dig. § 55; Dec. Dig. Om58(1).] 6. SPECIFIC PERFORMANCE Ovo 8-RIGHT TO circuit court of Cook county for relief in

CARTER, J. This was a bill filed in the RELIEF-DISCRETION OF COUBT.

Specific performance of a contract cannot a certain transaction involving a contract for be demanded as a matter of right, but rests in warranty deed for a house and lot in Chicathe sound discretion of the court, to be determined from all the facts and circumstances of go, a deed to a farm in Michigan, and an althe case, and, if the contract is unreasonable or leged oral contract concerning the sale of unjust, it will not be granted.

said farm and disposition of the proceeds (Ed. Note.-For other cases, see Specific Per- thereof. Appellant John P. Casey filed a formance, Cent. Dis. 88 17, 18; Dec. Dig. Omw8.] cross-bill. After the pleadings were settled, 7. SPECIFIC PERFORMANCE 121(3)—RIGHT the cause was referred to a master in chanTO RELIEF JUSTICE OF CONTRACT.

cery, and his report was approved by the Specific performance of an oral contract, trial court over the objections of appellants, whereby defendant agreed to take certain land in payment for property conveyed by him, will and à decree entered dismissing the crossnot be decreed, where the evidence does not sat- bill and finding in favor of appellees; the isfactorily show that the land he was to receive costs, including master's and stenographer's had substantial value above the incumbrances fees, being adjudged against appellant Casey. thereon. [Ed. Note. For other cases, see Specific Per

Appellee Mary K. Wolf, on October 31, formance, Cent. Dig. 8 390; Dec. Dig. Om 121 1914, was the owner of eighty acres of farm (3).]

land in Midland county, Michigan. John 8. SPECIFIC PERFORMANCE 121(11)-Right P. Casey was the owner of a house and lot TO RELIEF-PERFORMANCE OF CONDITIONS.

in Grove avenue, Chicago. Mrs. Wolf's husWhere complainants agreed to purchase a band was a bricklayer by trade, and Casey bouse and lot from defendant for a fixed price, had been in the real estate business, but was and to convey their farm to him as security by a deed absolute in form, they to have the right desirous of closing out his interests in that to sell the farm for as much as they could and line and devoting his whole time to the bankapply the proceeds on the purchase price of ing business. In the latter part of October, the house, they are not entitled to specific per- 1914, he called on the Wolfs with reference formance of the contract for the sale of the house to them because of defendant's failure to to selling to them this house and lot. After convey the farm to a purchaser secured by various conferences an agreement for warthem, unless the evidence clearly showed that ranty. deed was drawn up. This agreement there was a bona fide offer to purchase, from a person able to carry it out, and for a price recites: That it is made by Helen Lawrence which would pay for the house and lot.

spinster, party of the first part, and John [Ed. Note. For other cases, see Specific Per-J. Wolf and Mary K. Wolf, his wife, party of formance, Cent. Dig. § 395; Dec. Dig. Om121 the second part. That, if the second parties (11).]

will make the payments and perform the cove9. SPECIFIC PERFORMANCE 127(1)-RELIEF nants mentioned, the first party will convey -PRAYER

in fee simple the house and lot in question Though the specific relief prayed for in a for $2,500. That the second parties agree to bill for specific performance cannot be granted, the court can decree such relief as the facts pay the first party in manner following: Fif. show the parties entitled to, and can make the teen dollars cash in hand, receipt acknowl.

edged, and $1,285 in monthly payments of piece of real estate in exchange, but after$15, or as much more as second parties see ward agreed to make an even exchange of fit, beginning December 1, 1914. Second par- the house and lot for the farm, if he found ties to assume a trust deed of $1,200, and the farm was worth it; that she told him she also to pay interest on the amount from would not do that, as the farm was worth time to time remaining unpaid. When $1,300 $3,600 and the house only $2,500; that finalof the purchase price is paid, also all inter- in it was agreed that he should take the deed est, etc., first party is to deliver deed, sub- for the Michigan farm as security for the ject to said $1,200 trust deed. The contract house and lot; that, if she could sell the also contains the usual clause that, upon the farm for more than $2,500, she should have failure to make payments, it shall be forfeit- the excess over the $2,500, and the $2,500, if ed and determined at the option of the first paid before the 1st of the following May, party, and she may retain the payments should be taken by him in entire payment made in full satisfaction of all damages, etc. for the house and lot on Grove avenue; that This agreement was signed by John P. Casey if Mrs. Wolf or her agent found a buyer, he and both the Wolfs, and the name of Helen would deed the farm to the buyer. She furLawrence was also signed to it.

ther testified that on February 23, 1915, she The evidence is that Helen Lawrence had informed Casey that she had a buyer for the been in Casey's employment in a clerical ca- Michigan farm, Anna Hoffman, who had paid pacity, and that he had placed the title to her $10 as a deposit on the purchase, and this and other tracts of land in her name as that she (Mrs. Wolf) then asked Casey to a convenience in making trades. We under- make the deed to Anna Hoffman and give stand from the evidence that Casey signed witness a deed to the house and lot; that Miss Lawrence's name to this contract, and Casey then said that she could not sell the that, although she had no objection to his farm-that the house was his and the farm so doing, she did not know of it until the lat- was his, and that if she spoke like that again ter part of November, 1914, when she sign- he would put her in jail for 25 years; that ed papers conveying the legal title to this she asked Casey three times to make a deed property to Casey. Before that time she of the farm to Anna Hoffman, but he refused understood she held the land as trustee for each time. A daughter of Mrs. Wolt testified Casey. At the same time this agreement was that she heard this conversation between her executed and delivered, another contract was mother and Casey as to the deed to the farm entered into by them, which reads as follows: to Anna Hoffman, and that Casey refused to

"Agreement entered into this thirty-first day deed the farm, and said he would put Mrs. of October, 1914, between John P. Casey and Woll in jall for 25 years. John J. Wolf and Mary K. Wolf, his wife, that the said John P. Casey will sell a farm in

Casey denied making any oral agreement as Michigan for John J. Wolf and Mary K. Wolf to applying the proceeds of the farm, and tesas their agent, and the proceeds of said sale to tified that the only agreement as to that matbe applied on a certain contract now in force between Helen Lawrence and John J. Wolf ter was the written one dated October 31; and Mary K. Wolf for the purchase of prem- that the deed to the Michigan farm was givises No. 5738 Grove avenue. In case said farm en to him to secure him on the contract for should be sold by John J. Wolf and Mary Kil the Grove avenue house; that the Wolfs Wolf, or any other agent, the proceeds of said sale shall apply on said contract for purchase stated they expected to sell it to a Mr. Snyof premises 5738 Grove avenue."

der and his daughter, and would apply the November 11, 1914, the Wolfs, by warranty purchase money on the contract; that he told deed absolute in form, conveyed the Michi- the Wolfs, if they did not succeed in selling gan farm to appellant Casey, subject to a the farm to the Snyders, he would advertise mortgage of $1,000 and accrued interest. it and try to sell it, and in the meantime This deed was placed on file a few days later they were to do the same, or place it in some in the county where the land is situated. agent's hands to sell; that he asked originalCasey, his son James, and Miss Anna Levy, ly for Grove avenue property $2,600, but a clerk in his employ, all three testified that reduced the price to $2,500, and agreed to these two agreements, dated October 31, 1914, make the trade they would give him the and the deed to the Michigan farm, dated No- deed to the Michigan land as security; that rember 11, 1914, were all executed and deliv. he had no conversation with Mrs. Wolf on ered the same day, November 11, 1914. Appel. February 23d about a buyer having made a lee and Mrs. Wolf testified that the two agree. deposit of $10 on the farm; that he did have ments were executed and delivered the day a telephone conversation with the daughter they were dated, October 31, 1914, and that about such purchaser and deposit of $10, in the deed to the Michigan farm was executed which he said they could not close the deal the day it was dated. We find no other testi- without coming to his office, and that he did mony in the record on this point. Mrs. Woll state, if they did any crooked work, he would testified that Casey asked $2,500 for the house put them in jail for it; that this conversaand lot on Grove avenue, and that she told tion was in April, 1915, after the first notice him she did not have any cash and wanted of forfeiture was served, and that the Wolfs to trade her Michigan farm for it; that he did not mention having a purchaser until said he was getting out of the real estate that month. business, and did not want to take another On April 29, 1915, Casey served Mr. and

Mrs. Wolf with a written notice that, unless day, November 1, 1914. The decree found the they paid him $118.98 on the contract by same, while Casey's testimony is that they May 9th, the contract would be forfeited. were all executed along with the deed to the Thereafter he brought suit in the municipal | farm, on November 11th. We think the court for possession of the premises, but lat- weight of the testimony tends strongly to er took a nonsuit. June 4, 1915, Casey and support Casey's position on this point. his former partner, Coleman, called at the [2] If it be conceded, however, that the house on Grove avenue where the Wolfs liv- conclusion as to the oral agreement being ed, and laid a notice on the doorstep or on merged in the written agreement does not Mrs. Wolf's arm, to the effect that, unless necessarily follow from the record, then any $137.50 was paid on the contract by June oral contract relied upon as to the selling of 14th, the contract would be forfeited. Casey the Michigan farm and the disposition of its and Coleman both testified that at the same proceeds must be established by clear and untime the notice of June 4th was left Casey equivocal evidence, and the acts claimed as tried to give Mrs. Wolf a quitclaim deed from constituting part performance must have himself and wife to the Michigan farm; been done under the contract itself for the that upon her refusal to take it he laid it on sole purpose of performing it. Kane v. Hudher arm, and she crumpled it up and threw son, 273 Ill. 350, 112 N. E. 683; Christensen it after him, and they left it lying there. v. Christensen, 265 Ill. 170, 106 N. E. 627. Mrs. Wolf and her daughter testified that, The rule is well settled in this state that when this last notice was left, Casey and a parol contract for the conveyance of real Coleman tried to make Mr. and Mrs. Wolf estate will not be specifically enforced, unsign a quitclaim deed to the house and lot. less it appears to be clear, certain, and unCasey's copy of the agreement as to the equivocal in its terms, and the proof upon Grove avenue property shows indorsements which the conveyance is asked must be estabon December 5, 1914, interest $12.43 and prin lished so convincingly as to leave no reasoncipal $15, and on January 23, 1915, principal able doubt in the mind of the court. Lon$15. Mrs. Wolf admits that these payments ergan v. Daily, 266 Ill. 189, 107 N. E. 460, were made, and she also "claims that she and cited cases. It must also affirmatively paid another $15 on the principal, and it al- appear that possession was taken under the so appears that she paid $10 for insurance. contract. It is not sufficient that the party

The master found in his report, after set was previously in possession. Shovers v. ting out the testimony, that from the incep-Warrick, 152 Ill. 355, 38 N. E. 792; Christion of the negotiations Casey intended by tensen v. Christensen, supra; Lonergan v. unfair means to defraud appellees of their Daily, supra. Michigan farm and require them to pay him [3] The evidence was not at all clear as to the full price of $2,500 for the house and when possession was taken. Mrs. Wolf teslot, and that Casey intended to retain title tified they moved into the premises on Grove to the house and lot until it was thus paid avenue about November 12, 1914. Casey tesfor. The decree finds the same as the master tified that the Wolfs moved into the premises on these points, and further, as a conclusion the week commencing November 1st. The of law, that said fraudulent intention on contract as to the farm land and that as to Casey's part took the oral contract testified the sale of the Grove avenue property are to by appellees' witnesses out of the statute consistent with Casey's testimony with refof frauds, and that appellees were entitled erence to the sale of the Michigan farm and to a deed from Casey and his wife to the the application of the proceeds, and are inhouse and lot on Grove avenue, free and clear consistent with the appellees' testimony. It of incumbrance, and also that Casey was to does not seem reasonable, in view of the writpay appellees $100 and costs, including mas- ten agreement as to the Michigan farm, that ter's and stenographer's fees; the court re within a very few days after executing it taining jurisdiction of the subject-matter and Casey would make an entirely new agreeof the parties for such further proceedings ment with reference to the sale and applias may be necessary to carry the decree into cation of the proceeds of that farm, without effect.

destroying the old agreement and making a [1] If appellants are right in stating that new one in writing. The admitted facts as the deed to the Michigan land was executed to the payments made by appellees on the and delivered at the same time the other two Grove avenue property tend to uphold the contracts were, then all previous conversa claims of Casey as to the transactions, rather tions and oral agreements concerning the than the claims of the Wolfs. subject-matter of the contract were merged [4] We do not think that the claim of in the written agreements. Lanum v. Har- fraud asserted by appellees with reference to rington, 267 Ill. 57, 107 N. E. 826; Grubb v. this transaction is upheld by the evidence Milan, 249 Ill. 456, 94 N. E. 927. Mrs. Wolf, in the record. That claim seems to be based the only witness on this point on behalf of quite largely upon the fact that the Grove the appellees, testified that the two agree avenue property, at the time the trade was ments were executed on October 31, 1914, made, was in the name of Miss Lawrence, the date they bear. The master found that instead of Casey. We do not regard that as

sale of the Grove avenue house was signed, $215. To require, as the decree does, that by Casey, as well as in the name of Miss Casey shall deed the Grove avenue property Lawrence, and the evidence shows without to the Wolfs clear of incumbrance, pay them contradiction, as we understand it, that $100, and pay the costs of this suit, and as Casey signed Miss Lawrence's name to that a result of the trade that he have the document. Appellees certainly knew that Michigan farm, mortgaged for $1,000, with Miss Lawrence was named as the owner in any unpaid taxes and interest there may be, the contract at the time it was executed. is certainly not justified by the evidence in There seems to have been no attempt on the this record. part of Casey to conceal that fact, and he [8] It is absolutely essential to sustain the could not conceal it, in view of the fact that decree that the evidence in the record should the contract was drawn in the name of Miss clearly support the conclusion that Anna Lawrence as party of the first part

Hoffman made a bona fide offer for the farm (5) While it is true that fraud may be in Michigan of $2,600 over and above the inproved by circumstances, that we seldom ex- cumbrance on that farm, and was able to pect to prove it by the admissions of the carry her offer out. She herself did not tesparty, and often cannot find direct and posi- tify. No reason is given why she was not tive evidence of such fraud (Schwarz v. called, and there is no proof as to her finan. Reznick, 257 111. 479, 100 N. E. 900), and that cial ability to make good on such an offer. proof of circumstances which convince the The only testimony on this point is that of mind that fraud has been perpetrated is all Mrs. Wolf that Anna Hoffman made such that is required, still fraud will not be pre an offer and paid $10, and the further testisumed, but must be proved as a fact by such mony of Mrs. Wolf and her daughter that clear and convincing evidence as leaves the they told Casey that such an offer had been mind well satisfied that the allegations of made, and he refused to deed the farm. fraud are true. If the motives and designs | Casey's version, stated above, does not agree of a party charged with fraud may be traced with this testimony in many important parto an honest and legitimate source equally ticulars. The evidence as to Anna Hoffman as well as to a corrupt one, the honest source being a bona fide purchaser, able and willing must be preferred. McKennan v. Mickel- to execute and carry out her offer, is not such berry, 242 IU, 117, 89 N. E. 717, and cases a clear and satisfactory character as to aucited.

thorize the entering of the decree here in [6] Specific performance cannot be demand.question. ed as a matter of right, but rests in the sound discretion of the court, to be deter- the bill and allowed under the decree in this mined from all the facts and circumstances case does not appear to be authorized by the of the particular case. If the contract is evidence in the record, still the evidence does unreasonable or unjust, or for any other authorize specific performance under condigood reason should not be performed, a de- tions fair to all parties, in view of the writcree will not be granted. McDonald v. Min- ten agreements entered into by them. It is nick, 147 Ill. 651, 35 N. E. 367; Espert v. universally conceded that it is impossible for Wilson, 190 Ill. 629, 60 N. E. 923; Dreiske the courts to lay down any inflexible rule by v. Eisendrath Co., 214 Ill. 199, 73 N. E. 379; which it may be determined in any given McKennan v. Mickelberry, supra.

case whether specific performance should or [7] To enforce the oral contract testified to should not be decreed. Each case must rest, by appellee Mrs. Wolf, in the manner that in a large measure, upon its own particular the decree orders it enforced, in our judg- facts and peculiar circumstances. The genment would be most unjust to appellants. eral aim of a court should be to grant equitaThere is no testimony as to the value of the ble relief of such nature as will best accomMichigan farm, except that of Mrs. Wolf and plish the ends of justice. It is within the Casey. She testified that the farm cost her discretion of a court of equity to withhold $2,600 and was worth $3,600, and that there specific performance, unless the complainant was a mortgage of $1,000, on which no in- will elect to submit to such terms and conditerest was due November 11, 1914, and that tions in connection with the subject-matter the taxes were paid. Casey testified that the of the contract as the court may deem just farm land was worth $800 or $900, and that and equitable. 26 Am. & Eng. Ency. of Law the taxes and interest on the mortgage had (2d Ed.) 65; 36 Cyc. 752, and cases cited. not been paid for two years, and the owner This court, in Bear v. Fletcher, 252 Ill. 206, of the mortgage was threatening to foreclose; 96 N. E. 997, ordered specific performance as that the farm was unimproved and growing to a part of the contract and damages as to up to weeds. Casey testified that the Grove the remainder of the contract. In Attebery avenue property was worth $2,600 and there v. Blair, 244 Ill, 363, 91 N. E. 475, 135 Am. was a mortgage on it of $1,500. His former St. Rep. 342, the court ordered the sale of the partner, Coleman, testified it was worth from defendant's interest in certain property if he $2,500 to $2,800 A real estate man, Travis, did not choose to pay the purchase money testified it was worth $1,950. Casey testified within 40 days and receive the deeds. In that he had also made repairs since the Thayer v. Star Mining Co., 105 Ill. 540, the Wolfs went into possession that cost him court ordered one of the parties to build the

the 2 While the specific relief asked for in

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railroad in accordance with the agreement, , tofore set out in this opinion. If the total and, if it was not constructed within a cer- payments credited to the Wolfs on the printain time, decreed that within 60 days from cipal of the contract for the Grove avenue the entry of the decree all of certain rights house and lot, after following the procedure and interests under the contract should be above specified, are found to aggregate $1,300 forever extinguished. See, also, the follow- or more, the Wolfs will be entitled to a deed ing cases, where terms and conditions were to said house and lot according to the confixed as a part of the decree of specific per- tract, upon assuming or giving back a trust formance: De Walsh v. Braman, 160 Ill. 415, deed for the balance as provided by the con43 N. E. 597; Harrison v. Polar Star Lodge, tract; otherwise, the monthly payments shall 116 11l. 279, 5 N. E. 543; Worden v. Crist, be resumed, and the contract for the house 106 Ill. 326.

and lot shall proceed according to its terms [10] On the record before us, the written as to the balance found due thereon, with contracts as to the sale of the house and lot such modifications as to time as required to on Grove avenue and the sale of the Michigan do equity between the parties. farm should be carried out, except as to the The decree of the circuit court is reversed, matter of time. A court of equity, having ac and the cause is remanded for further pro quired jurisdiction to decree specific perform- ceedings in harmony with the views herein ance of a contract, will retain jurisdiction for set forth. the purpose of giving relief and settling the Reversed and remanded, with directions. whole matter. Griffin v. Griffin, 163 Ill. 216, 45 N. E. 241. In view of the conditions that

COOKE and DUNCAN, JJ., dissent. have arisen since the closing of the contracts, appellees, the Wolfs, shall be given

(276 Ill. 38) three months after the decree shall be enter CITY OF LAKE FOREST V. BUCKLEY. ed in the court below in which to sell the

(No. 10950.) Michigan farm at such price as some pur

(Supreme Court of Illinois. Dec. 21, 1916.) chaser in good faith will pay and they are

1. EXCEPTIONS, BILL OF On 14 TIME FOB willing to let the farm go for, and if it is so FILING. sold Casey shall make a deed to the purchas A bill of exceptions purports to be signed er, and the proceeds shall be applied on the at the time the exception is taken in the course payment of the balance due on the contract of the trial, whether presented then or after

wards; but if presented within the time alfor the house and lot on Grove avenue to the lowed by the court for filing it, and that fact extent it will reach, and if there is any sur. is shown on its face, it may be afterwards filed plus it will belong to Mrs. Wolf. If appel- as of that date within a reasonable time after

it is signed. lees are not able to so sell the farm at a price satisfactory to them within three months aft- Bill of, Cent. Dig. $ 73; Dec. Dig. Ow44.]

[Ed. Note.-For other cases, see Exceptions, er the entry of the decree below, then Casey 2. EXCEPTIONS, BILL OF 44-SIGNINGshall have three months in order to find a TIME. purchaser at a price that is satisfactory to The trial judge, upon signing it, should the trial court, the proceeds to be applied as

date a bill of exceptions as of the date when it above specified. After the expiration of six bill has done all within his power when he pre

was presented, where the party presenting the months, if no such purchaser is found, the sents it, and an order should be procured dicourt is directed to decree that the deed to recting that it be filed as of that date, though Casey from the Wolfs to the farm vests title the failure to follow such practice is merely an

irregularity, not rendering the bill void, and in him at a price the court, after hearing where the clerk thereafter, on his own motion such evidence on the subject as the parties or at the request of the party interested, files desire to offer, deems fair to all the parties it as of the date it was presented, the opposite in interest, and to apply such price on the party can take no advantage of the court's fail

ure to enter an order for its filing nunc pro Grove avenue house and lot.

tunc. A court of equity, having acquired juris (Ed. Note.-For other cases, see Exceptions, diction of the parties to a contract, may or- Bill of, Cent. Dig. $ 73; Dec. Dig. @m44.] der a decree for specific performance by di- 3. EVIDENCE Omw543(3)—IMPROVEMENT Agrecting the parties to execute a deed, and,

SESSMENT-EXPERT TESTIMONY. if the proper parties refuse, direct the ex

On an application for the confirmation of

an assessment roll for the cost of paving a ecution of the deed by a master in chancery. street, where a witness for an owner objecting Poole v. Koons, 252 111, 49, 96 N. E. 556. Aft-to the assessment of his lots stated that he had er the sale or other disposition of the farm examined the objector's property and the con

dition of the present roadway along the line as herein provided, the court is authorized of the proposed improvement, and based his and directed to adjust the rents, interest, opinion on his experience in "bundreds and improvements, etc., on the Grove avenue hundreds of paving cases,” but had never seen property and the Michigan farm, and the who did not testify as to his familiarity with

the property until the proceeding arose, and costs before the master, the circuit court, and the values of property in that locality, or with this court, in such a manner as is just and the market value of the objector's lots, was equitable to all the parties to this litigation, not qualified to state his opinion as to the ben

efits to the lot. baving in mind the facts and circumstances

[Ed. Note.-For other cases, see Evidence, with reference to this transaction as here- | Cent. Dig. f 2357; Dec. Dig. 543(3).)

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