Bolton v. Huling

• Decision Date: 21 February 1902
• Citation: 63 N.E. 140,195 Ill. 384
• Parties: BOLTON v. HULING et al.
• Court: Illinois Supreme Court

195 Ill. 384

63 N.E. 140

BOLTON

v.HULING et al.¹

Supreme Court of Illinois.

Feb. 21, 1902.

Appeal from appellate court, First district.

Action by Edward Huling and another against James Bolton. From judgment of the appellate court (91 Ill. App. 350) affirming judgment for plaintiffs, defendant appeals. Reversed.N. M. Jones, for appellant.

Walter L. Fisher and William C. Boyden, for appellees.

This is an action in assumpsit, brought by Edward C. Huling and Walter E. Huling, corpartners as E. C. Huling & Co., against James Bolton, to recover damages for the breach of a contract for the sale of certain lots on Indiana avenue, in the city of Chicago. The case has been tried twice in the trial court and twice in the appellate court. Upon the first trial in the circuit court judgment was rendered in favor of appellees for $2,375. Upon appeal from that judgment the case was reversed and remanded. 51 Ill. App. 591. The trial court has again found for the appellees, and rendered judgment in their favor for $2,125, and this judgment has been affirmed by the appellate court. 91 Ill. App. 350.

The record discloses the following facts: On the 22d day of January, 1890, appellees made a written proposition to appellant in relation to the purchase from him of two to him of one lot on State street, Chicago, as to him of one lot on State Stareet, Chicago, as follows:

‘We will give $37.50 per foot, cast, for lots 21 and 22, in block 4 (above herein described), etc., being the third and fourth lots north of Sixth-Third street, west front, on Indiana avenue. Title to be merchantable, and a merchantable abstract to be furnished, brought down to date. E. C. Huling & Co. January 22, 1890.

‘We will furnish you lot (29) on State street, west front, in Juhn N. Wheeler's subdivision, etc. (above described), located on State street between Fifty-Fourth and Fifty-Fifth, at $1,950, 28x160 feet or more, to alley, E. C. Huling & Co.’

On the back of the above written proposals the appellant wrote a single acceptance, as follows: ‘I accept the within if the title proves satisfactory.’

The sale to appellant of the State street lot was consummated in March following, and he received a deed therefor from one Flannigan. Appellant presented an abstract of the title to the Indiana avenue property, which appellees submitted to their attorneys, Matz & Fisher, who gave a written opinion concerning the title, in which they held that one Monroe N. Lord had title to the undivided half of lot 21 and the south 4 feet of lot 22, and appellant the undivided half of the same property, and that appellant also owned the north 21 feet of lot 22, subject to the equities of the persons in possession;subject, also, to a tax deed of date December 21, 1882; also to a tax deed dated May 6, 1885; and also to a sheriff's deed of date July 8, 1885, and other defects; and to make a good title required a warranty deed from said Lord to his interest in the lots, a quitclaim deed from the South Park commissioners, and a quitclaim deed from one Stanley. The Indiana avenue lots were each 25 feet front.

When appellant was advised of the defects in his title he sought the persons who held the interests necessary to be obtained to make it good, and found that they demanded more than he felt willing to pay to perfect the title, and on June 14, 1890, appellant, by his counsel, wrote appellees as follows: ‘Dear Sirs: We find it impossible to overcome all the objections of Messrs. Matz & Fisher, attys., to the title to lots 21 and 22, in block 4, of Davidson's sub., as P. E. Stanley apparently intends to do nothing in the matter, and thus tie the property up indefinitely. With this view we see no other way than to let the sale drop, unless the title can be accepted as it is.’

To this letter appellees replied as follows: ‘Gentlemen: Your favor of June 14th at hand. You will find it not so very easy to let this matter drop before you get through. Regarding lots 21 and 22 the contract is on record,-accepted by Mr. Bolton in his own handwriting. Part of that contract was the delivery of the other lot, which we have done. We have taken good advice, and shall proceed at once to compel him to perfect his title or pay damages.’

Nothing further was done until the 25th day of October, when appellees sent one of their attorneys, Matz, to appellant with the following letter: ‘Mr. James Bolton-Dear Sir: In reference to the contract entered into between you and us on the 22d day of January, 1890, for the sale by you to us [here follows description of property], we would respectfully inform you that we are still ready (as we have been ever since the examination by our attorneys of the abstract to said property furnished by you) to carry out our part of the said contract. We have now waited a reasonable time in said matter, and at your request have given you every opportunity to carry out your part of the contract. We now demand a deed of said premises, and are ready to pay you the purchase price therefor mentioned in said agreement, and must further ask you to at once definitely inform us whether or not you will perform your agreement and deliver said premises.’

When Matz took this letter to Bolton, Bolton replied, ‘I can't carry out that contract.’ Matz said, ‘Well, what are you going to do about the matter? I want a definite answer from you as to just what position you are going to take,-as to whether you will carry out the contract or not.’ Bolton replied, ‘Well, I won't.’

The case was tried before the court without a jury by consent of the parties, and appellant offered nine propositions to be held by the court, the first of which was given, and was as follows:

(1) ‘The so-called contract in evidence in this case is an offer by plaintiffs to buy of defendant two lots on Indiana avenue, the ‘title to be merchantable, and a merchantable abstract to be furnished, brought down to date,’ which said offer was accepted on the back thereof by defendant in the following words: ‘I accept the within if title proves satisfactory.’ The said contract or offer is conditional, not positive and legally binding unless the conditions are met.'

The second, fifth, sixth, seventh, and ninth refused propositions were as follows:

(2) ‘The contract offered in evidence in this case does not show an absolute, unconditional acceptance by the defendant of an offer or agreement to purchase the premises involved in this cause from the plaintiffs, and cannot be legally enforced unless satisfactory to defendant and plaintiffs.’

(5) ‘The title to the two lots in question not being merchantable or acceptable to plaintiffs, defendant had the right, as a matter of law, to drop the trade or withdraw from it, inasmuch as plaintiffs refused to accept the title offered.’

(6) ‘Defendant, under the circumstances of this case, had the legal right to give the notice introduced in evidence, and to withdraw from said sale under said notice, and to terminate said contract.’

(7) ‘Plaintiffs did not agree to accept the title which defendant had at the date of the contract in October, 1890; hence defendant was not obliged to give, of offer to give, a deed of said two lots.’

(9) ‘The letter of October, 1890, and the evidence connected therewith, do not, in law, amount to an offer to accept such title as defendant had prior to this suit.’

At the request of appellees, the court held two propositions of law, as follows:

(1) ‘The court holds as a proposition of law that in construing the written contract of January 22, 1890, it is proper for the court to consider the acts of the parties to the contract, subsequent to its execution, as bearing upon the practical construction, if any, placed upon said contract by the parties.’

(2) ‘The court holds as a proposition of law that if the court believes from the evidence that the letter of October 25, 1890, was delivered on said date to defendant, and nothing was said by the plaintiffs, their agent or attorney, at the time of or subsequent to or in connection with the delivery of said letter, modifying or changing the terms of said letter, and if the court further believes from the evidence that the defendant, at the time of the delivery of the said letter, said he would not carry out the contract of January 22, 1890, and deliver a deed, and at that time or subsequent to said time did or said nothing modifying or changing said statement, then the finding of the court should be in favor of plaintiffs.’

After the cause had been heard, and the court announced his conclusion, appellant, by his counsel, offered to tender a deed to the premises on the payment of the stipulated price. He had, in fact, no deed present, but proposed to make one if the court would allow time. This the court declined to do.

The errors insisted upon are the affirmance by the appellate court of the action of the circuit court in its refusal to give the special holdings asked by appellant and refused, and also in the holding of the appellate court that the trial court was not required to pass upon the tender made at the close of the trial, as well as other errors which it is unnecessary to set out.

RICKS, J. (after stating the facts).

The primary and controlling question, as we view it, is as to the legal effect of the contracts offered in evidence and made between the parties hereto. While the contracts were both upon the same piece of paper, it is apparent from the contracts themselves, as well as the evidence in the record, that they were entirely distinct. Huling & Co. were real estate brokers. The State street property that they proposed to sell to Bolton belonged to one Flannigan, and the Indiana avenue property that they were proposing to purchase was for some customer of theirs whose name they did not disclose. The offers as made by appellees were each of them independent, and each was signed separately by appellees. When these propositions were presented to appellant he made a single acceptance to both pro...