Hurlbut v. Kantzler

• Decision Date: 27 September 1884
• Citation: 112 Ill. 482,1884 WL 10023
• Parties: HORACE A. HURLBUTv.FREDERICK M. KANTZLER et al.
• Court: Illinois Supreme Court

112 Ill. 482

1884 WL 10023 (Ill.)

HORACE A. HURLBUT

v.FREDERICK M. KANTZLER et al.

Supreme Court of Illinois.

Filed at Ottawa Sept. 27, 1884.

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. GEORGE GARDNER, Judge, presiding.

This is a bill for a specific performance, brought in the Superior Court of Cook county by Horace A. Hurlbut, against Frederick M. Kantzler, Daniel F. Crilly, Charles H. Blair, and the Board of Education of the City of Chicago.

On May 12, 1876, the board of education of the city of Chicago leased to said Kantzler the south eight feet of lot 23, and lots 24, 25, 26 and 27, in block 142, in school section addition to Chicago, for a term of nineteen years, from the 8th day of that month, for the yearly rent of $4100, payable quarterly, with certain provisions for the re-adjustment of the rent every five years, Kantzler to pay all taxes and assessments levied on the premises. The lease contained a covenant that it should not be assigned without the consent of the board of education, to be evidenced by a certified copy of the proceedings of the board granting such consent, signed by the president and clerk of the board; and a further covenant, that Kantzler should, within sixteen months from the date of the lease, erect upon the leased premises a building to be worth not less than $40,000. Kantzler had not sufficient means himself, and did not succeed in borrowing the money necessary to erect such building. He continued to pay rent and taxes for over two years, without any return from the premises, sinking about $9000.

On August 8, 1878, Kantzler gave to Crilly & Blair an option, by a verbal agreement, to take an assignment of such lease for $5000, the offer to be held open till the first day of October, 1878. Eight days after, (August 16,) Kantzler gave to Hurlbut, the complainant, a written agreement, signed by Kantzler alone, to assign the same lease to him upon condition that Hurlbut should pay him $5500 on or before August 30, 1878,--if not so paid, the contract to be void. During the interview between Kantzler and Hurlbut, the latter prepared the following memorandum: “Memorandum of statement as basis of sale of lease by Kantzler to H. A. H., 104 on Dearborn by 120 on Monroe street; school lease to 1895; appraisal every five years; to 1880, rent $4100; no tax on land; F. M. Kantzler owns the lease; has plans and specifications for building; bids for the work; estimate $50,000 under present plans; K. has tenants who will lease for five years; amount $18,000 a year; will agree to furnish these tenants to me, provided I will furnish the building; will sell the lease, furnish plans, specifications and bids; premises free of any incumbrance; rents paid to August 8; for $5500.” After Kantzler had left, Hurlbut, without Kantzler's knowledge, wrote under Kantzler's signature to the agreement, the words, “Accepted as a contract.--H. A. Hurlbut.” He also wrote on the paper signed by Kantzler, and under the words “accepted as a contract,” etc., these words: “The additional conditions are on memorandum attached.” On or about the 29th day of August, 1878, Kantzler gave a verbal assent to extend the time of payment to Hurlbut for three days longer.

On September 6, 1878, Crilly & Blair, having learned that Kantzler was negotiating with Hurlbut for the sale of the lease to him, went to Kantzler and insisted that he should carry out his contract with them. On the next day, Kantzler, having notified Hurlbut that his negotiation with him was at an end, complied with the request of Crilly & Blair, and reduced to writing the verbal agreement of August 8, as of that date, which agreement was then accepted, and the acceptance was signed by the parties, and filed for record on September 20, 1878. After this, Hurlbut offered to pay Kantzler the $5500 upon certain conditions, (about which there is some dispute,) one of which was, that tenants should be furnished paying $16,000 a year rent, and that the building could be erected for from $47,000 to $50,000. No unconditional tender or offer to pay was made by Hurlbut.

On September 24, 1878, Kantzler, in pursuance of his contract, assigned his lease to Crilly & Blair, and on the 26th of the same month, Crilly & Blair applied to the board of education for its consent to such assignment. This was prevented by an injunction, at the suit of Hurlbut. The bill alleged that Kantzler had informed complainant that he would not make the assignment of the lease, but intended to transfer the same to Crilly & Blair, and an injunction was prayed for, and issued on the 26th of September, 1878, restraining Crilly & Blair and Kantzler from procuring the consent of the board of education, and from executing an assignment of the lease to Crilly & Blair. Crilly & Blair and Kantzler answered, admitting that Kantzler, on the day named in the bill, was the owner of the leasehold in question, and that he contracted with Crilly & Blair for the sale of the same to them, but taking issue on the other allegations of the bill; averring that whatever rights or equities Hurlbut may have had in the premises had been forfeited, and that they had no control over the board of education so as to compel them to assent to an assignment of said leasehold. The board of education interposed a demurrer, which was sustained, and the bill was afterwards dismissed as to them. On the 4th of October, 1878, the injunction was dissolved, and nothing was done in the case during the succeeding two years, and until November 15, 1880, when the complainant filed a supplemental bill against the appellees, averring that Kantzler had, since the commencement of the suit, surrendered his lease to the board of education, and cancelled all his right and interest therein, and that the board had accepted the surrender, and executed a new lease to Crilly & Blair, for a term of fifty years, in place of the surrendered lease to Kantzler.

It is insisted in the supplemental bill that Crilly & Blair are not bona fide lessees; that the surrender by Kantzler of his lease, and the executing by the board of the new lease to Crilly & Blair, were only a method of assigning said Kantzler's lease to them, and that Crilly & Blair, acquiring the said leasehold estate pendente lite, became trustees thereof for appellant. The bill prays that Crilly & Blair be decreed, upon payment or tender to them of $5500, and with the consent of said board, to assign to Hurlbut said lease, and in default thereof that they be adjudged trustees for complainant, of said leasehold estate, and that an accounting of the rents and profits be had. On a hearing, the original and supplemental bills were dismissed by the Superior Court of Cook county for want of equity, and on appeal to the Appellate Court for the First District the decree was affirmed, and the complainant below brings the case to this court on his further appeal. Mr. GEORGE CHANDLER, for the appellant:

Specific performance of unilateral contracts will be enforced in a court of equity. Mutuality is not in all cases a necessary condition. Pomeroy on Specific Per. page 238, sec. 164; Perkins v. Hadsell, 50 Ill. 216; Estes v. Furlong, 59 Id. 300; Smith & Fleeke's Appeal,69 Pa. St. 474; Vassault v. Edwards, 43 Cal. 458; Corson v. Mulvaney,49 Pa. St. 88; Kerr v. Day, 14 Id. 112; 1 Story's Eq. Jur. secs. 715-722; Willard's Eq. Jur. secs. 267, 268; Maughlin v. Perry, 35 Merr. 352; Homfrey v. Fathergill,L. R. 1 Eq. 567; Bell v. Howard, 9 Mod. 302; Kerr v. Purdy, 50 Barb. 000; Souffrain v. McDonald, 27 Ind. 269; Willard v. Taylor, 8 Wall. 557; Hersey v. Giblett, 18 Beav. 174; Ewins v. Gordon, 49 N. H. 444; Barnard v. Lee, 97 Mass. 92; Jones v. Robinson, 29 Maine, 351; Gordon v. Calvert, 2 Sim. 253.

Hurlbut was entitled, after the extension of time, to a specific declaration of a forfeiture before his rights could be cut off, and to a reasonable notice before. Waterman on Specific Per. secs. 449, 482; Sharp v. Frimmer, 24 N. J. Eq. 422; Durand v. Page, ...