Bostwick v. Hess

• Decision Date: 30 September 1875
• Citation: 80 Ill. 138,1875 WL 8724
• Parties: MARY M. BOSTWICK et al.v.DAVID HESS et al.
• Court: Illinois Supreme Court

80 Ill. 138

1875 WL 8724 (Ill.)

MARY M. BOSTWICK et al.

v.DAVID HESS et al.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Superior Court of Cook county; the Hon. S. M. MOORE, Judge, presiding.

This was a bill in equity, to enforce a conveyance of a certain eighty acres of land, lying just south of the city of Chicago, founded upon an agreement in writing, of which the following is a copy:

“Articles of agreement made and entered into this fifth day of June, A. D. 1855, by and between David Hess, of Naperville, in the county of DuPage, and State of Illinois, of the first part, and John Bostwick, of the city of Alton, in the State aforesaid, of the second part, as follows, viz: The said first party, for and in consideration of $500, to him in hand paid by the said second party, the receipt whereof is hereby acknowledged, has and does hereby give and grant unto the said second party, and none others, the right, option and refusal to purchase, at any time within the period of four months from the date hereof, upon the terms and conditions hereinafter named, the following described premises, viz: the west half of the south-west quarter of section three (3), in township thirty-eight (38) north, range fourteen (14) east, containing eighty acres, more or less. The terms and conditions of said purchase, of which a refusal is given as above, are as follows, viz: On or before the fifth day of October next, the said second party shall pay unto the said first party the sum of $2600 in cash, and thereupon a mutual contract of sale and purchase shall be drawn up, and executed and delivered by and between the said parties, by which contract the said parties shall mutually contract and agree as follows, viz: The said first party shall covenant on his part to execute and deliver to the said second party a good and sufficient deed in fee simple, at the expiration of the term in the said contract mentioned, if the said second party, on his part, shall have promptly fulfilled all his covenants therein contained, and the said second party, on his part, shall covenant to pay to the said first party, his executors, etc., as follows, viz: $1100 on the fifth day of June, A. D. 1856; the further sum of $2500 on the fifth day of June, A. D. 1857; the further sum of $4000 on the fifth day of June, A. D. 1858; the further sum of $5000 on the fifth day of June, A. D. 1859, with interest thereon from the fifth day of June, A. D. 1855, at the rate of 6 per cent per annum, the interest payable annually; the further sum of $5000 on the fifth day of June, A. D. 1860, with interest thereon at the rate as above from the fifth day of June, A. D. 1855, the interest payable annually; and the further sum of $5000 on the fifth day of June, A. D. 1861, with annual interest as above from the fifth day of June, A. D. 1855, and shall give his promissory notes for the aforesaid sums, payable at the times and in the manner above specified.

And the said second party shall also covenant to pay all taxes and assessments that may be levied and assessed upon said lands during the continuance of said contract.

The said second party shall also covenant to inclose said lands with a neat and substantial fence on or before the first day of January, A. D. 1856.

And shall also, within said time, (1st January, 1856,) break the ground and grade two streets through said lands. The said second party shall also covenant in and during the spring of A. D. 1856, to set out shade trees and evergreens in and about said lands and the streets through the same.

And shall decorate and beautify said grounds, and shall put said grounds, as soon as practicable, in a high state of cultivation, and keep them so.

The said second party shall also, within the year A. D. 1856, erect on said premises two dwelling houses, suitable for the residence of gardeners, who are to work upon and beautify said grounds.

It is further expressly understood and agreed, that the times of payment in said contract shall be considered and taken as the essence of said contract, and for a failure to pay promptly at the time any part of said purchase money, said contract shall be forfeited, at the option of the said first party.

And the said second party, on his part, covenants and agrees that the said $500 by him paid to the said first party on the execution of these articles, shall be absolutely and forever forfeited to the said first party, should he, the said second party, fail or refuse to complete the said contract of purchase on the terms and conditions above specified, and within the time above limited.

In testimony whereof the said parties have hereunto set their hands and seals, and to the duplicate hereof, the day and year first above written.

+------------------------+
                ¦D. HESS,        ¦[seal.]¦
                +----------------+-------¦
                ¦JOHN BOSTWICK.” ¦[seal.]¦
                +------------------------+
                

+------------------+
                ¦“In presence of ¦)¦
                +----------------+-¦
                ¦C. B. HOSMER.”  ¦)¦
                +------------------+
                

It appears that Bostwick, after the execution of the agreement, in the summer of 1855, without paying the $2600 or entering into the contract provided for in the option, and without the consent or knowledge of Hess, entered upon the premises, which were then uninclosed prairie, and caused the land to be fenced, some streets to be graded, and some breaking to be done.

On the 12th of September, 1855, Bostwick died at the house of Benjamin F. Downing, in Chicago. Mrs. Bostwick and her father, John Higham, were with him at the time of his death. They afterward consulted with Mr. Cornell, as an attorney, in regard to the estate of Bostwick. When the term of the option, four months, had expired, Hess came into Chicago from his residence at Naperville, and on the 6th or 7th of October, 1855, notified the parties that the optional contract was forfeited. Mr. Cornell, as attorney for the Bostwick estate, tried to get Hess to allow the value of the improvements, which it seems had not been paid for, except in small part, and remained a claim against the estate. Hess refused to allow any thing for the improvements, because they had been put on the land without his knowledge or consent. He, however, did not wish to appropriate the improvements, and expressed a willingness to let any one have the land at the price fixed in the forfeited option; and he thereupon made a verbal agreement with Cornell, that if he could find a purchaser, he (Hess) would sell the premises to him and allow Cornell to retain for the Bostwick estate the excess of the purchase money over the price fixed in the Bostwick option. Cornell succeeded, at length, in finding a purchaser in one Ralston B. Palmer, and on the 9th day of October, 1855, Hess, at the request of Cornell, executed a contract of sale for the premises in question to Ralston B. Palmer, for $29,700, which was $2,400 more than the price fixed in the option to Bostwick.

The cash payment was $5,000, of which Cornell was allowed to retain $2,400 for the benefit of Bostwick's estate.

Subsequently, Palmer executed to Lewis W. Stone and Benjamin F. Smith contracts of sale for certain undivided interests in the premises.

It appears, from the evidence, that Hess required, as a condition to the sale by him to Palmer, that Cornell should obtain from the Bostwicks, and surrender, the option of June 5th, and also that he (Hess) should have a bond of indemnity against any claims of Bostwick's estate, to be signed by Palmer, the purchaser, Mrs. Bostwick, the widow, and John Higham, ...