David Broadwell For the Use of Michael Thompson Et Ux. v. John B. Broadwell.

• Decision Date: 31 December 1844
• Parties: DAVID BROADWELL et al. for the use of MICHAEL THOMPSON et ux.v.JOHN B. BROADWELL.
• Court: Illinois Supreme Court

1 Gilman 599

6 Ill. 599

1844 WL 4117 (Ill.)

DAVID BROADWELL et al. for the use of MICHAEL THOMPSON et ux.

v.

JOHN B. BROADWELL.

Supreme Court of Illinois.

December Term, 1844.

OPINION TEXT STARTS HERE

BILL IN CHANCERY for a specific performance, etc. in the San?? gamon circuit court, brought by the plaintiffs in error against the defendant in error, and heard before the Hon. SAMUEL H. TREAT. The following is a copy of the instrument, a specific performance of which was sought to be enforced: “Know all men by these presents, that I, John B. Broadwell, am held and stand bound unto David Broadwell, Sarah Broadwell and others, in the penal sum of one thousand dollars--sealed and dated the 4th of January, 1827. The condition of this obligation is, that if the said John B. B. shall make unto the said David Broadwell, Sarah Broadwell, and others a deed for certain land ( describing it). It is agreed and understood that if Mary Jane Sweat and William Broadwell, or either of them shall live to lawful age, and the said John B. shall make a deed to them, or either of them, to the one equal half of the above described land, then this obligation to be void and of no more effect than as though the deed had been made to the first parties named--the true intent and meaning of this obligation being, that if Mary Jane Sweat and William Broadwell shall live to lawful age, they are to have the land equally divided between them; and if either or both of them should die before they arrive at lawful age, their parts are to go to the persons first named.

JOHN B. BROADWELL. [SEAL.]”

A decree was rendered in the court below substantially as follows: That said John B. Broadwell have the right to convey half the land mentioned in the bond, to the complainants, or to pay Michael Thompson, in right of the said Mary Jane Thompson, the sum of $500; and the said Broadwell having elected to pay the said sum of money by his answer, the court decrees, that, on or before the next day of the term of the court, he pay the sum of five hundred dollars, with legal interest from the first day of April, 1841, and the costs of this suit.

A. K. SMEDES, for the plaintiffs in error, submitted the following brief: There are three errors assigned in this cause, but the first includes the second, and must be decisive of the case. I shall only notice it. That assignment is: “The court erred in deciding that John B. Broadwell, the defendant in error, should elect to pay the penalty, as the bond is expressly for the conveyance of land.”

The court will see from the record in this case, that this was a bill to compel the defendant in error to convey to the plaintiffs certain tracts of land, mentioned in a bond made by John B. Broadwell to the plaintiffs.

The bond is in the penal sum of $1,000, “the true intent and meaning of the bond (according to its words), being that if the plaintiffs in error should live to lawful age, they are to have the land equally divided between them. The court below decided that John B. Broadwell should pay the penalty in the bond, as he had by his answer elected to do.

There is no principle better settled, than that where a bond is given in a penalty to do a certain act, and the thing to be done can be performed, the obligor shall be compelled to do as he has bound himself, and he can not elect to pay the penalty. Fonblanque's Eq. 131,285; 1 Maddock's Ch. 32, 44; 2 Story's Eq. Penalty; Hobson v. Trevor, 2 Peere Wms. 191; Ensign v. Kellogg, 4 Pick. 1; 3 Bibb 320.

If the court below had decided upon the obligation of the bond, according to its tenor, as it speaks for itself, it would have been compelled to decree the conveyance of the land to the plaintiffs in error. There can not be the least doubt, from what appears upon the face of the bond, what was the “true intent and meaning” of the parties. That intention is expressed in a few simple words, without the least ambiguity, and is so easily understood that the most unlettered person in the world, upon hearing it read, would know that “if Mary Jane Sweat and William Broadwell shall live to lawful age, they are to have the land equally divided between them.” The court below received evidence going to show that it was understood, at the time the bond was executed, that John B. Broadwell might either convey the land or pay the penalty at his own option. In this the court erred. As a general rule at common law, parol evidence is never admitted to explain, contradict, vary or alter a written agrement. In support of this well settled principle of evidence, the court is referred to 1 Sugden on Vendors 157, note 84, where many of the authorities on this point are collected by the American annotator; also to the same book 161, note 84, 163, 167, 169, 170-4, 181-5, 196, note 205; 2 Bibb 246. It is true, that where a bill is filed to compel a specific performance, courts of equity have departed from the rule laid down, and have, in some instances, admitted parol proof to vary the nature of the written contract. This has always been done with much hesitancy, and the most unequivocal proof has, in all cases, been demanded. 1 Sug. Vend. 180. Parol evidence may be admitted to correct a mistake, raise a resulting trust, and enlarge the time for performing a covenant. It is never admitted to correct a mistake in law. 1 Sug. Vend. 196, note; Wheaton v. Wheaton, 9 Conn. 96.

In this case, it is not pretended that there was any mistake in the facts. The bond was read to John B. Broadwell, who himself could read. Neither is there any proof of fraud or accident, although John B. Broadwell indirectly charges his father with having deceived him. Without the slightest proof of “fraud, accident or mistake,” the court below makes a decree that is directly in the teeth of what the bond says is “the true intent and meaning of the parties.” That it did so honestly and with the intention of administering, what the parol evidence when received justified it in doing, equity to the parties, can not for a moment be doubted. But why not as well have received parol evidence, that it was understood between the parties at the time of signing the bond, that John B. Broadwell should not pay the one thousand dollars in any thing but money, or that he might make the conveyance to any person else than the parties named in the bond? It would not have varied farther from what the bond says is the “true intent and meaning of the parties” to it, than the decree given in the case does. If parol evidence is admitted to alter or vary a sealed instrument, without the proof of fraud, accident or mistake, as it has been in this case, the decisions of the courts in England, and of those of every state in this Union must be, by this court, overruled. The maxim should be, “ stare decisis.”

The court also erred in not receiving the evidence of William Carson. He did not testify for his own interest, although he was the husband of one of the daughters of Moses Broadwell. 4 Scam. 150. See also the opinion of this court, given by Justice Young, in the Illinois Mutual Fire Insurance Company v. Marseilles Manufacturing Company (6 Ill. 236).

A. LINCOLN, and E. D. BAKER, for the defendant in error:

1. It requires a much less strength of case, on the part of the defendant to resist a bill to perform a contract, than it does on the part of the plaintiff to maintain a bill to enforce a specific performance. 2 Story's Eq. Jur. §§ 692, 693, 742, 750, 751, 769.

2. Where a party applies to a court of equity to enforce a specific performance of a written contract, the adverse party is allowed to show, by parol, that the instrument relied upon does not express the true agreement of the parties. 2 Story's Eq. Jur. § 770; Bradbury v. White, 4 Greenl. 391; Dwight v. Pomeroy, 17 Mass. 328.

3. A defendant may show by parol, that by mistake of law, a written instrument is executed in such form and terms as to be, in legal effect, different from what the parties supposed and intended; and thereby defeat a specific performance of such instrument. Cathcart v. Robinson, 5 Peters 276, 277.

S. W. ROBBINS, for the plaintiffs in error, in conclusion:

A written agreement is to be construed and interpreted by its terms only, unless fraud, accident, or mistake relate to it. I Johns. Ch. R. 231, 240, 273, 281, 339; Sug. Vend. 161, note 83, 163, 168, 169. Intent of the parties must govern. Fonblanque's Eq. 307 § 13, and notes d. and e. and at bottom of the page; 2 Binney 537, 544; 2 Desauss. 124; 4 Dall. 347, note on page 128; 2 Story's Eq. 746; Sug. Vend. 157, 196, note. Must be a mistake as to fact and not of law.

With regard to penalty. Fonblanque's Eq. 130 § 2; 2 Story's Eq. 543. Specific performance, 2 Story's Eq. 22, 53; also §§ 1302, 1313, 1314, 1316, 1316 a; Hart v. Calloway, 2 Bibb 462; Kelley's Heirs v. Bradford, 3 do. 320; 1 Maddock's Ch. 32, 43.

A specific performance will be enforced, although the bond with penalty. Chilliner v. Chilliner, 2 Vesey Sen. 528; Hobson v. Trevor, 2 Peere Wms. 191; Ensign v. Kellogg 4 Pick. 1; Whitbread v. Brockhurst, 1 Brown's Ch. R. 418.

As to exclusion of witness, Brooks v. McKinney, 4 Scam. 316. As to delivery, Herbert v. Herbert, Bre. 282.

A seal imports a consideration and can not be rendered invalid by parol understanding. Kelly's Heirs v. Bradford, 3 Bibb 320.

CATON, J.

This bill was filed by Thompson and wife, formerly Mary Jane Sweat, to enforce the specific performance of a bond, dated the fourth of January, 1827, executed by the defendant, in the penal sum of one thousand dollars, payable to David Broadwell and others named, conditioned for the conveyance of the premises in question, to the obligees. “It is understood and agreed by the contracting parties, that if Mary Jane Sweat and Wm. Broadwell, infant son of William Broadwell, deceased, or either of them shall live to lawful age, and the said John B. Broadwell shall make a deed to them, or to the survivor of either of them, to the one equal half of the above described land,...