Evans v. George

• Decision Date: 30 September 1875
• Parties: DANIEL EVANSv.HENRY P. GEORGE et al.
• Court: Illinois Supreme Court

80 Ill. 51

1875 WL 8705 (Ill.)

DANIEL EVANS

v.HENRY P. GEORGE et al.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOHN BURNS, Judge, presiding.

Mr. FRANK J. CRAWFORD, for the appellant.

Mr. D. HARRY HAMMER, and Mr. FRANK J. SMITH, for the appellees.

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

This action was brought to recover money paid on a contract made with defendants, as agents for one Hynes, supposed to be the owner, for the sale to plaintiff of a certain tract of land. The contract was in writing, was signed by defendants, as agents, and contained this clause, “we to procure for him said deed within a reasonable time, or refund the sum now paid.” That sum was $250. The agreement contained the further provision, “Sale made subject to ratification of owner.” Hynes lived in Vermont, and when applied to for that purpose refused to ratify the contract.

Afterwards defendants made another contract with plaintiff for the sale of part of the same tract of land, upon which he advanced the further sum of $360. This contract was subject to the same conditions as the former one. On application to Hynes, he refused to ratify the second contract, and thereupon the $360 advanced upon it was returned to plaintiff.

It is not contended that at this or any other previous time, defendants had refunded to plaintiff $250 advanced to them under the first contract, but plaintiff insists he was urged by defendant George, and under his advice placed the agreement on record in the recorder's office of the county, and that defendants promised to refund him the $250 in a short time.

Shortly after these transactions, it was discovered that Hynes was not the owner of the lands about which the parties had been negotiating, but one Morse was the real owner. After the dissolution of the co-partnership between defendants, such negotiations were had with George by which plaintiff purchased the lands of Morse. The latter sale was effected April 10, 1872.

There is no pretense the $250 advanced on the first contract has ever been refunded, unless it was done in some way on the Morse contract. But we are unable to find any satisfactory evidence that it was adjusted in that way.

It will not do to say the case presents a conflict of evidence, was properly submitted to the jury on proper instructions, and for that reason the verdict ought to be permitted to stand. Upon looking into the instructions, we find every one of the series given on behalf of defendants, is, in some particular, faulty. We can not undertake to comment on each of them, but will speak of them in a general way that will...