Almini v. Osgood

• Decision Date: 30 September 1870
• Citation: 1870 WL 6638,57 Ill. 340
• Court: Illinois Supreme Court
• Parties: JEVNE & ALMINIv.URI OSGOOD et al.

57 Ill. 340

1870 WL 6638 (Ill.)

JEVNE & ALMINI

v.URI OSGOOD et al.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

Messrs. RANDALL & FULLER, for the appellants.

Messrs. URI OSGOOD & SON, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a bill in equity, filed by appellants in the circuit court of Will county. The bill alleges that they entered into a contract with Osgood for the purchase of a lot in the city of Joliet, for the sum of $1,000; and to be paid--$400 in painting and fresco work on the Universalist church, $200 on the first of September, 1859, and $200 on the first of September in each of the years of 1860 and 1861, with interest at the rate of 10 per cent from the first of September, 1858, the purchasers to pay all taxes and assessments, and on failure to do so, the sums thus neglected to be paid to become part of the purchase money. On payment as agreed, Osgood was to convey the property to complainants. The contract contained a clause of forfeiture, at Osgood's option, in case of failure to pay; the frescoing and painting to be done in ten weeks from the time of entering into the contract, which was the 24th of July, 1858.

The bill alleges that the painting and frescoing were done to the satisfaction of Osgood, and were accepted by him, who gave to them a receipt for the same; that being unable to meet the first cash payment, they saw Osgood, and it was mutually agreed the contract should be at an end, and they supposed it was, but having failed to cancel the agreement, Osgood, on the 26th of September, 1860, commenced a suit in the Will circuit court on the agreement; that, thereupon, one of the complainants saw Osgood and a new settlement was made, and Osgood, in consideration of $50 then paid, and $76 to be paid in twenty days, released them from the contract, and agreed to dismiss the suit at complainants' costs; that complainants afterwards paid Osgood in work, to his satisfaction, $103.40, which more than paid the $76 and the costs of the suit. At the last settlement, when they rendered their bill of work, Osgood gave them a receipt.

Osgood, on the 16th of November, 1866, notified them the costs had not been paid, when they offered to pay the balance if it exceeded their bill over the $76; but he denied that the balance was to be so applied. Osgood did not dismiss his suit, but on the 24th of February, 1867, took judgment for $787 damages, and $27.70 costs; that they had no knowledge of the judgment until the following October, when the sheriff of Cook county served an execution issued thereon, upon them. The bill charges that the judgment was fraudulently obtained, is unjust, and prays an injunction perpetually restraining its collection.

The answer admits the sale was made, the agreement entered into, and that complainants did the work on the church, and giving the receipt, but charges they never fully did the same. Defendant denies any arrangement was made by which the contract was rescinded, although complainants, separately and at different times, called on him to procure its rescission; that after the third payment had matured, he brought suit against complainants; that after the suit was brought, Almini came to Joliet to procure a settlement, and it was then agreed that complainants should forfeit the $400 paid in painting, &c.; should pay $50 on the contract, and complainants should furnish paints, and paint defendant's house, blinds and fence, and pay the costs of the suit and surrender the contract, and defendant would then dismiss the suit; that the $50 was paid, the painting partially done but not completed, but he was willing to have accepted it and dismissed the suit, if they had paid the costs; that he wrote complainants to return the contract, and sign a stipulation that the suit was to be dismissed at their costs, unless they preferred to receive a deed for the lot, which he was ready to execute, but they did not return the agreement, or sign the stipulation; admits he obtained judgment, but denies complainants ever paid the costs or surrendered the contract, as agreed. Osgood and Beveridge filed a cross bill, setting up substantially the same facts contained in the answer, offering to convey when payment should be made, and praying a decree for the amount due on the contract, and for damages on the dissolution of the injunction. On motion, the injunction was dissolved, and a suggestion of damages was filed, and afterwards a trial was had on the bill and answer thereto, the cross bill and answer thereto, replication, exhibits and proofs, when a decree was rendered that complainants pay the full amount of the judgment, including damages, costs, and interest thereon; also all taxes and assessments which have been paid by Osgood on the lot, and the sum of $250 damages for his reasonable attorneys' fees, making in the aggregate the sum of $1,562.49, and costs of the suit. To reverse which the record is brought to this court, and errors are assigned thereon.

Have appellants shown themselves entitled to the relief sought? They show that they saw Osgood, and terms were agreed upon for the cancellation of the contract, but it was never consummated. The contract which they held on Osgood was not returned as agreed. They had no right to retain it, when it was a part of the conditions upon which a cancellation was to be made that it should be returned. Osgood repeatedly wrote them to return it and pay the costs, and he would dismiss the suit, and thus consummate the...