Baker v. Puffer

• Decision Date: 22 October 1921
• Docket Number: No. 13911.,13911.
• Citation: 299 Ill. 486,132 N.E. 429
• Parties: BAKER v. PUFFER et al.
• Court: Illinois Supreme Court

299 Ill. 486

132 N.E. 429

BAKER

v.PUFFER et al.

No. 13911.

Supreme Court of Illinois.

Oct. 22, 1921.

Error to Circuit Court, Du Page County; Mazzini Slusser, Judge.

Suit by Fred Baker against Maurice L. Puffer and others. Decree of dismissal, and plaintiff brings error.

Reversed and remanded, with directions.

Samuel G. Hamblen, of Chicago, for plaintiff in error.

Bunge, Harbour & Schmidt, of Naperville (Gustave H. Bunge, of Chicago, of counsel), for defendants in error.

DUNCAN, J.

Fred Baker, plaintiff in error, filed his bill in the circuit court of Du Page county November 1, 1920, against Maurice L. Puffer, Allene L. Puffer, and Victor Fredenhagen, defendants in error, to compel the specific performance of a written contract to convey a certain house and lot in Downers Grove, in said county, and for the determination and allowance to complainant of a just and reasonable amount of rebate or reduction of the purchase price, as the defendants the Puffers were unable to conveyall the area of lots agreed by them to be conveyed, and for damages for failure to deliver possession as agreed and for expense incurred by complainant. Two of the defendants, the Puffers, filed their general and special demurrers, which were sustained by the court. The other defendant filed an answer in the nature of a disclaimer, stating that he was willing to deposit the $300 earnest money which was placed in his hands by the purchaser for the vendors on completionof the contract, for disposition by the court as equity might require, and disclaimed any other interest in the suit. Plaintiff in error elected to stand by his bill, and the court entered a decree dismissing the bill for want of equity. The record is brought to this court for review on error.

Among the facts admitted by the demurrer are the following: On September 7, 1920, the Puffers, being owners as joint tenants and possessed of the property in question, entered into the following written agreement with plaintiff in error for the sale of the same, which was signed by the Puffers and by plaintiff in error, to wit:

‘M. L. Puffer and Allene L. Puffer, his wife, joint tenants, hereby agree to sell and F. Baker agrees to purchase at the price of fifty-seven hundred dollars ($5,700) the following described real estate, situated in Du Page county, Ill.: The Puffer home, at No. 75 South Main street, with lot 75x298 feet, and the improvements thereon, in the village of Downers Grove, sections 7 and 8 in township 38 north, range 11 east of the third principal meridian, subject to: (1) Existing leases expiring November 1, 1920, when possession will be given; (2) all taxes and assessments levied after the year 1919. Said purchaser has paid three hundred dollars ($300) as earnest money, to be applied on said purchase when consummated, and agrees to pay, within fourteen days after the title has been examined and found good the further sum of twenty-seven hundred ($2,700) dollars at the office of V. Fredenhagen, 15 South Main street, Downers Grove, Ill., provided a good and sufficient warranty deed conveying to said purchaser a good title to the said premises (subject as aforesaid) shall then be ready for delivery, the balance to be paid as follows: Twenty-seven hundred dollars ($2,700) September 7, 1921, with interest at the rate of 6 per cent. per annum, payable semiannually, to be secured by notes and mortgage or trust deed of even date herewith on said premises, in the form ordinarily used by the First National Bank. A complete abstract of title or merchantable copy to be furnished within a reasonable time, with a continuation thereof brought down to this date. In case the title, upon examination, is found materially defective within ten days after said abstract is furnished, then, unless the material defects be cured within sixty days after written notice thereof, the said earnest money shall be refunded and this contract become inoperative. Should said purchaser fail to perform this contract promptly on his part at the time and in the manner herein specified, the earnest money paid as above shall, at the option of the vendor, be forfeited as liquidated damages, including commissions payable by vendor, and this contract shall be and become null and void. Time is the essence of this contract and of all the conditions thereof. This contract and earnest money shall be held by V. Fredenhagen for the mutual benefit of the parties hereto.'

The further facts admitted in the bill are that plaintiff in error paid the $300 earnest money as agreed; that an abstract of title was delivered to him, and that he immediately sent it to an abstracter in said county and had the same continued, the certificate of the abstracter being dated October 6, 1920; that immediately upon the receipt of the abstract so continued he delivered it to Samuel G. Hamblen, his attorney, for examination, who returned it to him October 19, 1920, with an opinion of title showing the defects in the same, which defects were, in substance, that the property was described by metes and bounds, but not in the language describing it in the written contract; that it would require a survey or a certificate of a surveyor to identify the property and size of the lot; also certain defects were pointed out in the abstract as to the release or satisfaction of a certain trust deed and mortgage; and that the abstract did not show whether or not there are any judgments in the federal courts that are liens on the property, and whether or not the property is subject to claims for liens or special assessments not yet confirmed, and whether or not the taxes are paid. The opinion was also accompanied by an affidavit, with a recommendation that the Puffers sign and swear to the same to clear up some of the deficiencies in the abstract; also that he delivered the opinion and affidavit to the Puffers and informed them that upon their satisfying him that the description in the abstract was correct, and executing the affidavit satisfying him that the notes and trust deed had been canceled, he would perform the contract on his part; that the Puffers refused to execute the affidavit or satisfy...