Christopher v. West
| Decision Date | 22 March 1951 |
| Docket Number | No. 31613,31613 |
| Citation | 98 N.E.2d 722,409 Ill. 131 |
| Parties | CHRISTOPHER v. WEST. CHRISTOPHER v. ZICK. |
| Court | Illinois Supreme Court |
A. M. Fitzgerald, of Springfield, for appellant.
Gillespie, Burke & Gillespie, of Springfield, and Stone, Stone & Hess, of Bloomington, for appellee.
Christopher sued West in the circuit court of Sangamon County for the return of a down payment made as earnest money on the purchase of certain real estate. Both the purchaser (Christopher) and seller (West) have died since the suit was instituted and are here by their personal representatives. For convenience and to avoid confusion we shall refer to the parties as Christopher and West, or as 'purchaser' and 'seller.'
The trial court directed a verdict in favor of the purchaser and against the seller. On appeal to the Appellate Court, that court reversed the circuit court without remanding, on the sole ground that a tender was necessary from the purchaser to the seller, (which was not made,) of the balance of the purchaser price, coupled with a demand for performance as a condition precedent to instituting suit. We granted leave to appeal.
West was a resident of Iroquois County and the land, situated there, was sold at public sale on February 22, 1946, at the courthouse in Ford County. Christopher was a resident of Sangamon County. Immediately following the sale a written contract was entered into, whereby West agreed to convey by good and sufficient warranty deed the land contracted for and to furnish an abstract of title and allow second party reasonable time to have same examined. It was further provided that after the examination was made, the seller should within a reasonable time correct any defects in the title 'and shall make such abstract show a merchantable title.' The purchaser agreed to pay in all $27,076.50, and down payment of $4061.47 was paid as earnest money. Time was of the essence and the covenants extended to their heirs, executors, administrators and assigns. The contract was dated February 22, 1946. Christopher entered into possession soon thereafter, and on May 15, West delivered to him an abstract under date of May 8. On May 20, a 'preliminary' opinion of title was sent to West, claiming title was unmerchantable. The main objection concerned a failure to serve sufficient notice of the petition to probate the will of one Logan A. Gridley, deceased, who appeared in the chain of title. West proposed certain measures to cure the objections, which were not acceptable to Christopher. On July 2, the latter advised West by registered mail of his rescission of the agreement and demanded return of the down payment, interest thereon, and expenses incurred. The basis of this rescission was that West had not within a reasonable time made the title merchantable as specified in the preliminary opinion, and that he could not do so within a reasonable time. Possession was relinquished about August 1.
On August 13, West instituted suit in Iroquois County, where the land is situated, to quiet and confirm title in him, and a decree to that effect was entered on November 15. Shortly thereafter on November 22, the parties at the request of West met with their respective attorneys in Springfield, and West tendered a warranty deed, signed by himself and wife, and an abstract of title continued to November 18, showing the quiet-title proceedings and decree. This tender Christopher refused, on the ground the same was not tendered within a reasonable time as contemplated by the agreement. He insisted the title was not merchantable at the time of the examination, and West did not make it so within a reasonable time after the expiration of the ninety days and the tender of November 22 was beyond the expiration of a reasonable time. This suit was started in January, 1947.
West entered a limited appearance in the trial court and moved to dismiss the complaint, on the ground the cause of action or some part thereof out of which the cause of action arose did not occur in Sangamon County and the defendant did not reside there. This motion was denied and West amended his answer, and, as one of his defenses, asserted Christopher did not make a necessary tender to West of the balance of the purchase price as a necessary condition precedent to successfully maintaining his suit. The lower court did not approve this defense and thereupon, at the close of all the evidence, entered judgment against West for the earnest money, interest and costs.
On appeal to the Appellate Court, West assigned twenty-eight alleged errors; all are briefed and argued and after minor alterations that brief stands as his brief here. The Appellate Court held that it was not necessary to decide the question of venue or the merchantability of the title. It specifically restricted the decision to holding it was necessary for the purchaser to tender to the seller the balance of the purchase price, coupled with a demand for performance as a condition precedent to the successful prosecution of the suit. Christopher here objects to the ruling as to the tender and assigns the reversal of the judgment as error. Both parties, acting on the belief the appeal to this court presents all of the errors assigned...
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Geary v. Dominick's Finer Foods, Inc.
...appellate court did not address this issue, so it is not properly before us and we decline to consider it (see Christopher v. West (1951), 409 Ill. 131, 134-35, 98 N.E.2d 722). We are only concerned in the case at bar with the sufficiency of the Second, the parties discuss at length whether......
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People v. R.G.
...3-3(1)(b). Because the circuit court did not rule on section 3-3(1)(b), we decline to review that section. See Christopher v. West (1951), 409 Ill. 131, 134-35, 98 N.E.2d 722. The circuit court found that because section 3-3(1)(a) does not provide for an individual assessment of the risk of......
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Schwartz v. Cortelloni
...before us. Boatmen's National Bank v. Direct Lines, Inc., 167 Ill.2d 88, 212 Ill.Dec. 267, 656 N.E.2d 1101 (1995); Christopher v. West, 409 Ill. 131, 135, 98 N.E.2d 722 (1951). We therefore reverse the judgment of the appellate court and remand this cause to the appellate court for consider......
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...not properly before us. We therefore remand to the appellate court for consideration of the remaining issues. See Christopher v. West (1951), 409 Ill. 131, 135, 98 N.E.2d 722 ("When the Appellate Court does not pass upon questions raised by assignments of error in that court, the Supreme Co......