Kimball v. Tooke

• Decision Date: 30 September 1873
• Citation: 70 Ill. 553,1873 WL 8643
• Parties: FREDERICK O. KIMBALL et al.v.M. MCKENDREE TOOKE.
• Court: Illinois Supreme Court

70 Ill. 553

1873 WL 8643 (Ill.)

FREDERICK O. KIMBALL et al.

v.M. MCKENDREE TOOKE.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. W. W. FARWELL, Judge, presiding.

Mr. MILTON T. PETERS, Mr. E. A. SMALL, and Mr. JOHN N. JEWETT, for the appellants.

Messrs. HARDING, MCCOY & PRATT, and Mr. E. W. EVANS, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The contract between the parties which appellee seeks to have specifically executed, bears date the 27th day of February, 1869. On that day, appellants sold to appellee the tract of land described in the bill, for the sum of $30,000, payable as follows: $100 cash in hand; $5000, including the $100 paid down, on or before the 15th day of March, 1869; $5000 on the 1st day of September, 1869, and the remainder in two equal annual installments of $10,000--the payments to be secured by mortgage, with power of sale, and to bear interest at the rate of eight per cent per annum. The contract contained a clause in which it was expressly provided, in case of the failure of the vendee to make either of the payments, or perform any of the covenants on his part, the vendors, at their option, might declare a forfeiture, and retain all payments previously made as liquidated damages. The bill was not filed until the 12th day of September, 1872. All the installments had matured long prior to that date. The only payment that was ever made on the purchase was the sum of $100, at the date of the execution of the agreement.

The right to relief is predicated on the ground that, at the maturity of the installment due March 15, 1869, there appearing to be an incumbrance upon the land, created by two old unsatisfied mortgages, and a cloud upon the title, caused by a conveyance by and back to Hart L. Stewart of a portion of the land, appellant Frederick O. Kimball, who is the real owner of the land, the other appellant having only a dower interest, voluntarily waived payment on that day, with a view to get time to remove the incumbrances from the land, and the cloud from the title. The extension mutually agreed upon, it is alleged, was from the 15th to the 16th of March, and from the latter date to the next Saturday or Monday.

On the contrary, appellants insist they were ready on the 15th of March, with a deed properly executed, to perform the agreement; that there was no extension of the time of performance agreed upon or consented to by them beyond the 16th of March, at 2 o'clock in the afternoon of that day, and the installment due on the day previous not having been paid, a formal declaration of forfeiture was made, with a view to put an end to the contract.

There are but few facts material to the consideration of the case, and scarcely any contradiction in the testimony relative to them, except as to what occurred between the parties at the several interviews on the 15th and 16th of March, 1869. All the witnesses who testify on either side, from their own knowledge as to what transpired at those interviews, were at the time interested in the property. The interests of Pitner and White have since been extinguished.

Passing over, for the present, what occurred between the parties on the 15th and 16th of March, a brief statement of the other facts and events as they transpired, so far as they are necessary to illustrate the case, may be made. Whatever may have been the understanding, it is certain Kimball did not call on him after the interviews on the 15th and 16th of March, but Tooke wrote him two letters in relation to the completion of the unsettled business between them. The first letter is without date, but, from the testimony, it was written about the 25th of March, in which it is said it is understood Hart L. Stewart is willing to give a quit-claim deed, to correct the records of the title to Kimball's land, and that they are ready to close the matter on call. This letter is signed by Pitner and Tooke. No allusion is made in it to any incumbrance upon the property. The next letter is dated April 19, 1869, in which he says he has been waiting for several days for Kimball to call with the deed to the premises, with the title perfected, and that the money is in the bank. Both letters were received, but no replies sent.

On the 1st day of May, Tooke called on Kimball, at his residence, in regard to the matter, but Kimball would entertain no negotiations about the property, and most unequivocally assured him there was no contract existing between them; that it had been forfeited for non-payment of the installment due on the 15th of March. On his return, Tooke immediately caused a mortgage, with power of sale, to be prepared, to secure the deferred payments, and, on the 5th of May, White, acting as the agent of Tooke, called at the residence of appellants on the premises, and tendered to Mrs. Kimball the mortgage, together with the $5000, less $100 previously paid, with interest from the 15th day of March, and demanded a deed, which was refused, for the reason assigned, that the contract had then been declared forfeited. At the same time, White left a written notice for Frederick Kimball, that the mortgage, notes and money would be deposited in his safe, subject to his order. There is no pretense there has been any offer by Tooke, or any one for him, to pay either of the subsequent installments as they severally became due, and no offer whatever, other than that contained in the bill, to pay whatever amount should be found due, if the court should decree a specific performance of the agreement.

The reason assigned for the long delay in bringing this bill is, that, on the 2d day of December, 1869, appellants filed their bill in the Superior Court of Chicago, to cancel the contract, which had previously been placed on record in the proper office, on the ground it was a cloud upon the title of the property, the same having been declared forfeited for the non-payment of the installment due March 15, 1869. That bill had been dismissed by the Superior Court for want of equity, and the cause was still pending in the Supreme Court. The appellee alleges he was advised by counsel that the decision in the Supreme Court would definitely settle the rights of the parties, and hence no steps were taken by cross-bill in that case, or by original bill, to compel a specific performance of the contract.

It is contended, the former decision is conclusive of one controverted fact in this case, viz: that there was no formal declaration of forfeiture of the contract by the vendors on the 16th day of March, 1869. However that may be, we do not think that decision affects the merits of this controversy. The decree of the Superior Court was modified in this court so as to stand as a decree without prejudice to the rights of the parties, in case a bill should be brought by the vendee for a specific performance of the contract. Concerning the position of the parties in reference to such possible litigation, the court expressed no opinion.

The former bill was filed by appellants to have the contract rescinded on the ground that the payment to be made on the 15th of March was not made or tendered, and that the vendors then gave notice of their election to declare a forfeiture. This was the sole ground upon which relief was sought. Counsel for the vendee then insisted the court should confine its decision to the case made by the bill, and, in view of that fact, it was said, “whether, as urged by appellants, it was the duty of Tooke to tender payment of the first installment before the 5th of May, even accepting his own evidence as to what occurred on the 15th and 16th of March, or whether it was also his duty to tender the September installment, are questions to be solved when Tooke shall file a bill for specific performance, if he ever takes that course. They are certainly not questions presented by the pleadings in the case.” Kimball v. Tooke, 64 Ill. 380.

These are the controlling questions in the present case. They lie at the foundation of the right to the relief sought. By the former decision, we are left perfectly free to determine them as upon first impression.

We have carefully considered the case in all its phases, and we are unable to perceive anything in the record that would relieve appellee from the duty to tender the first installment on maturity, or certainly on the 16th of March. It was the agreement the vendors, in case of a failure to make “either payment” at the appointed time, might, at their option, declare a forfeiture. That provision, in effect, made time of the essence of the contract.

There was no express agreement, nor indeed anything from which consent could be inferred, to extend the time of payment of the first installment beyond the 16th day of March; and, in the absence of such an agreement, or proof of circumstances that would throw him off his guard, the law made it the duty of the vendee to tender compliance with his contract. A failure in this respect gave the vendors the option to rescind the agreement.

On the question of the extension of the time of payment of the first installment, the testimony can hardly be said to be contradictory. Kimball is positive in the assertion there was no extension beyond two o'clock of the afternoon of 16th of March, and Tooke's declaration is, “he said nothing to the contrary, and we took it for granted that it was the intention to perfect the title before requiring the payment,” and that he “seemed willing to make the necessary effort to get it (the cloud upon the title) removed.” Clearly, there was neither an express nor an implied agreement to waive prompt payment of the first installment.

Neither the incumbrance upon the property nor the cloud upon the title insisted upon constituted any valid excuse for the failure of the vendee to offer to perform his agreement. The vendors could remain passive until there was offer of performance on the part...