Eppstein v. Kuhn

• Decision Date: 08 February 1907
• Citation: 225 Ill. 115,80 N.E. 80
• Parties: EPPSTEIN et al. v. KUHN.
• Court: Illinois Supreme Court

225 Ill. 115

80 N.E. 80

EPPSTEIN et al.

v.KUHN.

Supreme Court of Illinois.

Dec. 22, 1906.

Rehearing Denied Feb. 8, 1907.

Appeal from Circuit Court, Champaign County; Solon Philbrick, Judge.

Bill by Isaac Kuhn against Samuel Eppstein and others. From a decree in favor of complainant, defendants appeal, and complainant assigned cross-errors. Reversed in part and remanded.William E. O'Neill and A. D. Mulliken, for appellants.

Ray & Dobbins, for appellee.

Appellant Samuel Eppstein was, and had been for several years prior to June 7, 1904, the owner of premises in the city of Champaign, Ill., known as ‘No. 41 Main street.’ The legal title was in his son, William D. Eppstein, but there is no dispute that the premises really belonged to his father. Isaac Kuhn, appellee, and his father, owned a building and premises but a few feet distant from Eppstein's, in which they were, and had been for years prior to June 7, [225 Ill. 116]1904, conducting a clothing store. On said June 7, 1904, appellee contracted to purchase from Samuel Eppstein the said premises known as ‘No. 41 Main street’ for the sum of $7,500. He paid Eppstein $500 cash, and Eppstein signed and delivered to him the following written agreement: ‘Champaign, Illinois, June 7, 1904. I herewith acknowledge receipt of five hundred dollars as part payment on my building, 41 Main street, which I sell and convey to Isaac Kuhn for seventy-five hundred dollars; and I hereby agree to deliver to Isaac Kuhn, Champaign, Illinois, on or before July 1, a clear title and deed, free of any and all incumbrances whatsoever, taxes paid by me to date of delivery of abstract, on payment of balance by said Isaac Kuhn of seven thousand dollars. Samuel Eppstein.’ At the time this agreement was entered into Eppstein resided in the city of Chicago and the premises agreed to be conveyed were in the possession of Juhn McDonnell, a tenant of Eppstein. Eppstein procured his son, William D., to execute a deed to appellee and forwarded it to the Trevett & Mattis Banking Company, of Champaign, Ill., with instructions to the bank to deliver it to appellee upon payment by him of $7,000, balance of the purchase price. Appellee was notified that the Trevett & Mattis Banking Company had the deed, and he called at the bank for the purpose of paying the balance due and securing the deed. He knew the premises were occupied by a tenant, and insisted that the possession be delivered to him with the deed. The bank officers informed him they could do nothing but deliver the deed and collect $7,000. On the 1st day of July, 1904, appellee, with his attorney, called at the bank, tendered $7,000 in gold, and demanded delivery of the deed and possession of the premises at the same time. He was informed by the bank officers that they could do nothingbut deliver the deed and collect the money. Appellee refused to pay the money and accept the deed unless the delivery of the deed was accompanied by the delivery of the possession of the premises also. After numerous conferences and some correspondence between the parties and their attorneys, Eppstein demanded that appellee accept the deed to the premises with the tenant, McDonnell, in possession, or that the contract be canceled, and he would return the cash payment made upon the delivery to him of the contract. This appellee declined, and on the 10th day of September, 1904, filed a bill for the specific performance of the contract, and for an abatement of the purchase price on account of damages appellee claimed to have sustained on account of the nonperformance of the contract by Eppstein. McDonnell, the tenant, remained in possession of the premises until the 22d day of December, 1904, when the building on said premises was partially destroyed by fire, whereupon McDonnell vacated. Appellee then filed a supplemental bill alleging the destruction of the building by fire; that Eppstein had wrongfully retained possession of the premises after making the contract, through his tenant, McDonnell; and that by reason therof appellee could not procure any insurance on the building. The supplemental bill alleged that Eppstein had insurance on said building, which he had collected; that the building was reasonably worth $5,000; that appellee had been damaged in that sum by the fire, and prayed that, in addition to the deductions prayed in the original bill, an abatement be made from the contract price of the amount of deterioration in the value of said premises resulting from the fire.

At the April term, 1905, of the circuit court of Champaign county the Trevett & Mattis Banking Company filed an answer, admitting they held the deed, with the instructions to deliver on the payment of $7,000. McDonnell disclaimed any interest in the premises, and the Eppsteins demurred to the bill. The circuit court sustained the demurrer and dismissed the bill. That decree was reversed upon an appeal by appellee to this court. Kuhn v. Eppstein, 219 Ill. 154, 76 N. E. 145,2 L. R. A. (N. S.) 884. Upon the case being again docketed in the circuit court of Champaign county, the Eppsteins filed their answer and William D. Filed a cross-bill. Upon issue being joined on original, supplemental, and cross bills, the cause was referred to a special master in chancery, with directions to report his conclusions of law and fact. After hearing the evidence the master reported that the Eppsteins were both bound by the contract with appellee; that after receiving $500 the Eppsteins had deposited with the Trevett & Mattis Banking Company a warranty deed containing the usual covenants of warranty, to be delivered to appellee upon the payment of the balance of the purchase price; that said Trevett & Mattis Banking Company offered to deliver the deed, but were unable to deliver possession of the premises on account of John McDonnell being in possession thereof and claiming an interest therein as tenant of the Eppsteins; that McDonnell had been in possession a considerable period of time before the execution of the contract, and that this was known to appellee at the time the contract was made; that there had been no modification of the contract between the parties, and that the Eppsteins had failed and refused to perform it on their part. The master found that appellee was the equitable owner of the premises at and before the destruction of the building by fire; that the insurable value of the building was $3,000, and that the Eppsteins, by refusing to comply with their contract, prevented appellee from procuring any insurance on the premises, and were therefore liable to him for the sum of $3,000, less the cost of the insurance, $40.56. The master also found that appellee had sustained damages to the amount of $260 on account of procuring plans for the remodeling of the premises and advertising his business on the supposition that he would have possession July 1, 1904.

Objections and exceptions were filed by both parties to the report of the master. Upon the hearing the court overruled the exceptions filed by appellee, and overruled all the exceptions filed by the Eppsteins, except those relating to special damages for a failure to perform the contract. Those exceptions were sustained. The court found by its decree that McDonnell had no title or interest in the premises July 1, 1904, except that of possession, subject only to the demand of the owner of the building; that the Eppsteins failed to obtain possession of the building and deliver the same to appellee according to their contract July 1, 1904; and that, by reason of such failure, appellee refused to accept the deed and pay the balance of the purchase price; that appellee was entitled to nominal damages for the nonperformance of the contract, which the court fixed at $1. The court further found that the Eppsteins had the building insured; that, during the pendency of the suit, it was damaged by fire; and that it was admitted by the pleadings Samuel Eppstein had collected $2,500 insurance, for which he should account to appellee, less the amount paid therefor. The court found the equities of the case with appellee, and that he was entitled to the specific performance of the contract, and to have the premises conveyed to him upon the payment of the amount found due by the court. This amount was found to be $4,535, and was arrived at by deducting from $7,000 the insurance collected by the Eppsteins, $2,500, less $36 premium paid, and $1 nominal damages. From that decree, the Eppsteins have prosecuted this appeal.FARMER, J. (after stating the facts).

Appellants' contention is that the defect in the title on account of the occupancy of the premises by McDonnell was not a substantial and material one; that appellee knew McDonnell was in the possession of the premises when the contract was made, and that, as appellants offered to perform the contract so far as they were able to, and convey all the title they had to the premises, a decree for a specific performance could amount to nothing more than they had offered to do, and that in such cases it is not the province of a court of equity to award specific performance and abate from the purchase price the damages sustained by the vendee for the failure to convey the premises free from the incumbrance; that in such case the law affords a complete and adequate remedy, and jurisdiction will not be assumed by a court of equity. Appellee has assigned cross-errors challenging the correctness of that part of the decree finding...