Keogh v. Peck

• Decision Date: 20 April 1925
• Docket Number: No. 15477.,15477.
• Citation: 147 N.E. 266,316 Ill. 318
• Parties: KEOGH v. PECK et al.
• Court: Illinois Supreme Court

316 Ill. 318

147 N.E. 266

KEOGH

v.PECK et al.

No. 15477.

Supreme Court of Illinois.

Feb. 17, 1925.

Rehearing Denied with Modification April 20, 1925.

Suit by John W. Keogh against Robert B. Peck and others. Decree for plaintiff, and defendants appeal.

Affirmed.Appeal from Superior Court, Cook County; Charles M. Foell, judge.

King, Brower & Hurlbut, of Chicago, for appellants.

W. T. Alden, C. R. Latham, H. P. Young, Charles Martin, and H. C. Lutkin, all of Chicago, for appellee.

HEARD, J.

This is an appeal from a decree entered by the circuit court of Cook county in favor of appellee in accordance with the prayer of his bill of complaint, ordering the specific performance by appellants of an option contained in a 99-year lease made by appellants' predecessor in title to appellee's assignor for the sale to the tenant of the fee of the premises for $10,000 at any time during the term of the 99-year lease when the tenant should give notice of his election to purchase-at least 60 days prior to the date fixed for the consummation of the sale.

[1][2] March 26, 1900, Comfort E. Peck, who was then the owner of the premises in question, made a written demise of the premises to James B. Keogh for a term of 99 years; the term beginning May 1, 1900, and ending April 30, 1999, at a rental of $500 per annum, payable quarterly. December 6, 1911, Comfort E. Peck conveyed the premises to Robert B. Peck, one of the appellants, and on May 3, 1922, after the filing of the bill of complaint herein but before service of process, Robert B. Peck conveyed the same to the appellant Samuel B. King upon some secret trust. On June 1, 1915, James B. Keogh, the lessee, assigned to appelleeall his right, title, and interest in the lease and agreement, and since that time appellee has been in the exclusive possession of the premises under the lease. February 21, 1922, appellee, having elected to exercise his option to purchase the premises, deposited in the United States mail, postage prepaid, a written notice of such election to Robert B. Peck, designating April 29, 1922, as the date for the consummation of the purchase of the property. The envelope was addressed, ‘Robert B. Peck, care of the Bank of North America, Philadelphia, Pa.’

The eleventh paragraph of the lease provided:

‘Each party to this lease shall, upon the execution and delivery hereof, furnish to the other party a name and address in the city of Chicago to which all notices and communications required or provided for by this lease to be given to the party furnishing such name and address may be directed.’

Upon the lease is the indorsement:

‘I hereby designate ‘Comfort E. Peck, Nos. 169-173 Ontario street, Chicago, Illinois,’ as my address under paragraph 11 of the foregoing indenture.

‘Chicago, March 26, 1900.

‘Comfort E. Peck.’

It is contended by appellants that the notice of election to purchase mailed by Keogh to Peck was invalid because it was not addressed to the place designated in the lease, and that there is no proof in the record that the notice was received by Peck 60 days before the time fixed for the consummation of the transaction. After the purchase of the premises by John W. Keogh, he did not furnish at any time, in accordance with the eleventh paragraph of the lease, to the tenant or to his assignor, a name and address in the city of Chicago to which notices and communications required or provided for by the lease should be directed. Comfort E. Peck died in 1915. Had the appellee attempted to give notice of his election to purchase by mailing a notice thereof addressed to Comfort E. Peck, a man who had been dead for more than five years, and had given no other notice, we do not think that it would be contended by any one that such notice would be sufficient. The eleventh paragraph was inserted for the convenience of the parties. It does not provide that all notices must be sent to the address given, but provides for the furnishing of a name and address to which notices ‘may be directed.’ This provision is not mandatory, and a notice addressed to Robert B. Peck at his usual address would be a sufficient compliance with this paragraph. The evidence shows that Peck's usual address was care of the Bank of North America, Philadelphia, Pa., and the notice in question was therefore properly addressed. Robert B. Peck did not testify and there is no proof in the record that the notice was not received by him in due course of mail. Proof of the mailing of the notice addressed to him at his usual place of address is prima facie evidence that he received the notice in due course of mail, the evidence not showing the contrary. Young v. Clapp, 147 Ill. 176, 32 N. E. 187,35 N. E. 372;Bickerdike v. Allen, 157 Ill. 95, 41 N. E. 740,29 L. R. A. 782.

[3] There is no evidence in the record showing the time required for the transmission and delivery of a letter from Chicago to Philadelphia, except that a person can travel from Chicago to Philadelphia in less than a day. In the absence of any evidence of actual delay, the court will take judicial knowledge that a letter written during business hours in Chicago on February 21, 1922, would be delivered in Philadelphia, in the usual course of the mail, more than 60 days prior to April 29, 1922. AEtna Indemnity Co. v. Fuller, 111 Md. 321, 73 A. 738,74 A. 369;German American Bank v. Cramery, 184 Mo. App. 481, 171 S. W. 31.

[4][5] Appellee's notice to Peck called for a warranty deed from Peck to appellee, ‘subject only to the provisions of the said lease,’ and appellants contend this is a variation from the terms offered in the option, which excepted from the covenants of warranty liens or taxes, which by the terms of the lease the lessee was to pay, or any liens on the property created by the lessee. There is no variation, the term ‘subject only to the provisions of the said lease’ being broad enough to cover any exceptions or limitations as to the deed provided for in the lease. Even if it were to be held that appellee's demand was not for a deed in strict compliance with the covenants of the lease, this would not defeat the present action for the reason that Peck did not place his refusal to convey upon this ground, but before the time fixed for the consummation of the sale Peck brought suit in ejectment for the premises against appellee on the ground that the lease, and consequently the contract for purchase, had been forfeited. Where a covenant to convey does not entitle the covenantee to a deed with full covenants, his right to a conveyance will not be defeated because he demands such a deed, if the covenantor, in refusing, does not object on that account and wholly denies the covenantee's right. Locander v. Lounsbery, 24 N. J. Eq. 419;McCormick v. Stephany, 61 N. J. Eq. 208, 48 A. 25;Scott v. Shiner, 27 N. J. Eq. 187.

[6][7] The premises in question were situated on the southeast corner of Ohio and Pine streets, in Chicago. At the time of the execution of the lease and option the neighborhood in which the premises were located was a desirable residence neighborhood and the premises were then worth about $9,000. Between that time and 1917 it deteriorated to a poor boarding-house neighborhood. Thereafter what is known as the Michigan avenue improvement was made, the name of Pine street was changed to North Michigan avenue, and the ground value of the premises was greatly enhanced by the improvement. It is contended by appellants that at the time of the making of the contract neither of the parties had in contemplation the change in conditions, and that therefore specific performance should not be awarded. Where the parties are competent to contract and enter into a contract fairly and understandingly, with the wisdom or folly of their contract, made for a consideration and without fraud, courts have no concern. Florida Ass'n v. Stevens, 61 Fla. 598, 55 So. 981;Mizell Live Stock Co. v. McCaskill Co., 59 Fla. 322, 51 So. 547. The object of courts of equity, as well as courts of law, is the enforcement of contracts rather than their evasion, and where a valid contract exists for a sale of land a court of equity will enforce it as a matter of right where it was fairly and understandingly entered into and no circumstances of oppression and fraud appear. Miedema v. Wormhoudt, 288 Ill. 537, 123 N. E. 596. In considering the fairness or hardship of a contract, the usual rule is to decide those questions with reference to the time when the contract was made, unless the delay in carrying it out is caused by the person seeking performance. The mere fact that the value of the property contracted for has increased or diminished since the contract was executed ordinarily will not warrant a refusal to carry out its terms, in the absence of circumstances indicating fraud or bad faith. Anderson v. Anderson, 251 Ill. 415, 96 N. E. 265, Ann. Cas. 1912C, 556.

[8][9][10][11] During the making of the Michigan avenue improvement, by reason of the change of the grade of the street and other conditions, the premises became unfit for habitation and were vacant for some time. The evidence shows that for some years the receipts from rentals were not sufficient to pay the taxes and assessments. After the improvement was made the locality changed from a residential to a business neighborhood, and appellee, to secure a revenue from the premises in any way commensurate with the changed conditions, caused the demolition of the house on the premises and entered into contracts for the erection of a two-story business building thereon. It is contended by appellants that in so doing he was guilty of waste, in violation of the terms of the lease, and that for that reason he cannot obtain specific performance of his contract. ‘Waste’ is defined to be ‘a spoil or destruction in houses, lands or tenements, to the damage of him in reversion or remainder.’ Davenport v. Magoon, 13 Or. 6, 4 P. 299,57 Am. Rep. 1. A ‘reversion’ is defined by Blackstone to be ...