Clark v. Weis

• Decision Date: 30 September 1877
• Citation: 1877 WL 9875,87 Ill. 438,29 Am.Rep. 60
• Parties: BARRETT B. CLARKv.JOHN WEIS.
• Court: Illinois Supreme Court

87 Ill. 438

1877 WL 9875 (Ill.)

29 Am.Rep. 60

BARRETT B. CLARK

v.JOHN WEIS.

Supreme Court of Illinois.

September Term, 1877.

OPINION TEXT STARTS HERE

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

Messrs. BARBER, RANDALL & FULLER, for the appellant.

Messrs. FAIRCHILD & BLACKMAN, for the appellee.

Mr. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the Court:

On the 27th of April, 1864, appellant executed and delivered to appellee his penal bond for $2000, subject to the condition that he should make and deliver to appellee a deed, with usual covenants of warranty, for a certain tract of land, on or before the 27th of April, 1866, provided appellee paid him therefor the sum of $1717 with interest at ten per cent.

Appellee paid appellant $100, at the time of the execution of the bond, and $500 about three months thereafter.

The declaration contains two counts. The first is special, on the bond, and the second is for money had and received by appellant to appellee's use.

The issues presented by appellant's pleas were, 1st, general issue, 2d, Statute of Limitations, and 3d, set-off; but since appellant only questions the sufficiency of the evidence, and the ruling of the court in respect of tender and payment by appellee, in performance of his part of the contract, it will only be necessary to notice those questions. Appellant asked the court, and the court refused, to instruct the jury as follows:

“The material issues in this case, on the part of the plaintiff, are, a contract, payment and tender of payment by the plaintiff in full performance of his part of the contract as stated in his declaration and replication; and unless the jury believe, from the evidence, that the plaintiff has sustained said issues by a preponderance of proof, then the law is for the defendant, and the plaintiff can not recover.

In order to make a legal tender of money, as stated in plaintiff's declaration, the exact amount of money then due must have been actually produced by the plaintiff, in lawful money, and by him offered to the defendant; and unless the jury believe, from the evidence, that such a tender was made by the plaintiff to the defendant, as stated in said declaration, then the law is for the defendant, and plaintiff can not recover.

In order to have the advantage of a tender of money, the party making the tender must keep it good.”

The evidence very clearly shows that appellant never was in a condition to make a good title to the property to appellee. His claim of title rested upon a deed which is shown to have been a mortgage, in fact, and since satisfied, though not formally released. Besides, appellant had, by quitclaim deed, expressly disposed of all his interest in a part of the property at the time the bond was executed, and at no time subsequently did he repossess himself of the title, or offer to do so. A portion of the property was also in the actual occupancy of the party claiming to be the real owner (the mortgagor), and so remained. This party neither was legally dispossessed, at any time, nor does it appear that he could have been.

Under this state of...