Fish v. Leser

• Decision Date: 30 September 1873
• Citation: 69 Ill. 394,1873 WL 8478
• Parties: JOHN FISHv.JOHN LESER et al.
• Court: Illinois Supreme Court

69 Ill. 394

1873 WL 8478 (Ill.)

JOHN FISH

v.JOHN LESER et al.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

This was a bill for specific performance, filed by John Fish against John Leser and Johanna Leser, his wife. The substance of the material facts is given in the opinion of the court.

Messrs. NISSEN & BARNUM, for the appellant.

Messrs. WILKINSON, SACKETT & BEAN, for the appellees.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill, filed in the Superior Court of Cook county, by John Fish, appellant, against John Leser and Johanna Leser, appellees, to enforce the specific performance of a contract for the sale of a certain lot in Chicago. Upon the hearing of the cause, the court entered a decree dismissing the bill, and the complainant prosecuted this appeal.

Courts of equity will not always enforce the specific performance of a contract. Such applications are addressed to the sound legal discretion of the court, and the court must be governed, to a great extent, by the facts of each case, as it is presented.

A specific performance will not be decreed unless the agreement has been entered into with perfect fairness, and without misapprehension, misrepresentation or oppression. Frisby v. Ballance, 4 Scammon, 287; Underwood v. Hitchcock, 2 Vesey, 279. The contract must be fair, equitable and just, and the complainant should be prepared to show that it will not be unjust or oppressive on the defendant to have the contract enforced. Stone v. Pratt, 25 Ill. 25.

We will, then, examine some of the leading facts in this case, and see if the complainant has brought himself within the principles announced, which are necessary in order to enable him to obtain the relief he asks, in a court of equity.

It appears that the defendants, or one of them, in the fall of 1871, were the owners of the property in question, and had owned and resided upon it for many years. The appellees are foreigners by birth, with but little education, and are not well acquainted with our language; they transacted but little business--indeed, the evidence shows that John Leser has, for several years, been scarcely competent to transact any business; they can write, but are unable to read our writing.

The house in which they resided, on the property in question, together with other property on the same street, was destroyed by the fire of October 9, 1871. Previous to the fire their property was not desirable, and could not readily be sold in the market, on account of the bad repute of other houses on the same street. The fire, however, removed this objection to the street, and property immediately began to advance. Farwell & Co. commenced to build on the same street, on the next block west, which also caused property to advance. These facts were unknown to the Lesers, but were well known to enterprising business men. Under these circumstances, the Lesers, soon after the fire, were sought out by one John P. White, a real estate agent in the city, who desired to get an agency to sell their property.

This property, at the time of the sale, as near as we are able to judge from the evidence, was worth $30,000--some of appellees' witnesses place it as high as $35,000, while appellant's witnesses fix its value at $21,000 to $22,000. Burt, who owned the east half of the same lot, testifies he fixed the price of his lot at $30,000, but withdrew it from market, and would not sell at that price, and his opinion is, this lot is worth that amount.

White had several interviews with the Lesers. He wanted to act as their agent; advised them to sell; claimed that property would depreciate rather than increase in value. He never informed them that Farwell & Co., and others, were buying and preparing to build in that neighborhood--a fact that was well known to business men.

Johanna Leser, in her evidence, says: White came again; said he had a man to buy the lot, and he would give $20,000, and we told him we would not sell for that; he said it would not be worth more in ten years; my husband said, if you give me $21,000 I will sell to you; this he refused; White told me to coax my husband to take $20,000; I told him I would not; he then said, well, I will not take another step towards selling your lot, and before spring you will offer it to me for $18,000.

During this time appellant was frequently at White's office, and he and White were negotiating on the lot.

White, in his testimony, says, they had given him verbal authority to sell the lot; that, after having several interviews, he called on them with an offer from appellant of $20,000 cash for the property; this they did not decide to take, but the next day he called again to see if they would accept the offer he had made them for appellant; he prepared and took with him a paper, for them to execute, authorizing him to sell the lot; after discussing the matter some time, they would not accept appellant's offer, but they made this proposition: they would take $16,000 cash, and the purchaser assume and pay a mortgage of $5000 that was on the lot, and pay commissions to White; he informed them he did not believe appellant would give that, but he would make him the offer.

The next day, which was November 1st, White called on John Leser, where he and his two sons were at work, and obtained his signature to a paper, which turned out to be authority to sell the lot, which reads as...