Harding v. Gibbs

• Decision Date: 09 May 1888
• Citation: 125 Ill. 85,17 N.E. 60
• Parties: HARDING v. GIBBS.
• Court: Illinois Supreme Court

125 Ill. 85

17 N.E. 60

HARDING

v.GIBBS.

Supreme Court of Illinois.

May 9, 1888.

Appeal from superior court, Cook county; G. GARNETT, Judge,

George R. Grant and C. H. Morse, for appellant.

Pliny B. Smith and Walter B. Gibbs, for appellee.

SHELDON, C. J.

This was a bill for specific performance of an agreement for the sale of certain real estate. Frederick C. Gibbs, on March 25, 1885, took a lease from Uzziel P. Smith of the premises in question for the term of five years from May 1, 1885. At the same time there was indorsed on the lease an agreement, signed by both parties, that during the first year of the tenancy the lessee was to have the privilege to purchase the premises at the sum of $9,500, of which $2,250 was to be paid in cash; $2,250 on or before one year after date of delivery of a warranty deed, to be secured by note and trust deed, and the balance by the assumption of a note and trust deed already on the premises for the sum of $5,00. But if the lessor should have an offer for the property, 10 days' notice thereof was to be given to the lessee, and he was to have the privilege of buying at said offer. Said price in any event not to exceed $9,500, and if the lessee did not decide to purchase the property, the lessor should have the privilege of selling the same. But if the lessee should decide to purchase, he should be allowed 30 days to close the purchase; and in the event of the lessor having an offer for the property after the expiration of the first year, the lessee was to have the first privilege of buying at said offer. George F. Harding offered Smith for the property $9,500, assuming the mortgage and canceling some indebtedness, the balance, $100, to be paid in cash. Harding took the property on those terms. A quitclaim deed of the property, bearing date April 1, 1885, was made to him by Abner C. Harding, who held the legal title to the property in his name in trust for Smith. On May 9, 1885, a written notice, signed by Smith, was served on Gibbs that Smith had an offer of $9,500 for the property, and Gibbs did not make any election to purchase the same. A previous notice had been given some two or three weeks before, having signed to it the name of Smith by Harding. On February 15, 1886, Gibbs made a tender to Harding of the money and note and trust deed provided for in the contract, and offered to assume the $5,000 mortgage then on the premises, and demanded a deed from Harding, which the latter declined to execute on the ground that Gibbs' option had been determined by the notice of May 9th. Gibbs then filed this bill against Smith & Harding for the specific performance of the contract. The superior court granted the relief prayed, and Harding took this appeal.

There is essentially no dispute as to the facts in the case, and the justification of the decree is rested by appellee's counsel on but the one point; that the notice of the offer of purchase of the property should have been given by Harding instead of by Smith. As there had been a deed of the property made by Smith to Harding before the giving of the notice, it is insisted that by such conveyance all right in the property passed from Smith and vested in Harding; that at the time of the giving of the notice Smith had no right...