Kuhn v. Eppstein

• Decision Date: 20 December 1905
• Citation: Kuhn v. Eppstein, 219 Ill. 154, 76 N.E. 145 (Ill. 1905)
• Parties: KUHN v. EPPSTEIN et al.
• Court: Illinois Supreme Court

219 Ill. 154

76 N.E. 145

KUHN

v.EPPSTEIN et al.

Supreme Court of Illinois.

Dec. 20, 1905.

Appeal from Circuit Court, Champaign County; Solon Philbrick, Judge.

Action by Isaac Kuhn against Samuel Eppstein and others. From a decree sustaining a demurrer to the bill, plaintiff appeals. Reversed.

Ray, Dobbins & Riley, for appellant.

William E. O'Neill and A. D. Mulliken, for appellees.

Appellant, Isaac Kuhn, filed his bill in the circuit court of Champaign county against the appellees, Samuel Eppstein, William D. Eppstein, the Trevett & Mattis Banking Company, and John McDonell, for the specific performance of a contract. The bill alleges that on June 7, 1904, Samuel Eppstein executed a certain contract in words and figures following: ‘Champaign, Illinois, June 7, 1904. I hereby acknowledge receipt of $500 as part payment on my building 41 Main street, which I sell and convey to Isaac Kuhn for $7,500, and I hereby agree to deliver to Isaac Kuhn, Champaign, Illinois, on or before July 1st, a clear title and deed free of any and all incumbrances whatsoever, taxes paid by me to date of delivery of abstract, on payment of balance by said Isaac Kuhn of $7,000. Samuel Eppstein.’The bill further alleges that upon the execution of said contract complainant paid the sum of $500 to Samuel Eppstein, and was notified that he would place the deed for said premises in escrow in the hands of the Trevett & Mattis Banking Company, to be delivered upon payment of the purchase price; that William D. Eppstein held the naked legal title to the premises, but the equitable title was in Samuel Eppstein, and William Eppstein held the same in trust for Samuel Eppstein and had no other or further interest therein; that upon the payment of the $500 William Eppstein executed a warranty deed for said premises to complainant and placed the same in escrow in the hands of the Trevett & Mattis Banking Company, to be delivered to complainant upon completion of the contract; that William D. Eppstein delivered to complainant an abstract of title and caused certain insurance policies to be delivered to complainant, and the complainant proceeded to expend the sum of $900 in obtaining details, plans, surveys and drawings for remodeling said premises, together with another building adjoining the same and belonging to complainant; that on July 1, 1904, complainant tendered to the Trevett & Mattis Banking Company, $7,000, and demanded the deed, and was informed by said banking company that it could only deliver said deed subject to a lease to one John B. McDonell, who claimed to hold the same for a period of three years from June 1, 1904; that thereupon complainant tendered the sum of $7,000 and demanded conveyance free from all incumbrances, which was refused by Samuel Eppstein. The bill further alleges that complainant has incurred certain liabilities in leasing said premises for business purposes, which liabilities cannot be carried out with the lease upon the premises. The prayer of the bill is that Samuel Eppstein, and John B. McDonell, the lessee, be required to interplead and settle and adjust the controversy between them; that the Trevett & Mattis Banking Company be required to bring the deed of conveyance into court, and that the amount which should be deducted from the purchase price of said premises may be ascertained, and that this amount may be deducted from the purchase price and the deed delivered to the complainant. Before the hearing, the building upon the premises, of the value of $5,000, was destroyed by fire, and insurance to the amount of $3,500 was collected by Samuel Eppstein. A supplemental bill was filed by complainant setting up these facts, and praying that the depreciation in value of said premises be deducted from the contract price and the remainder of said premises conveyed to complainant. William D. Eppstein and Samuel Eppstein demurred to the bill, and their demurrer was sustained by the court, and the bill dismissed for want of equity. From this decree, an appeal has been prosecuted to this court.

WILKIN, J. (after stating the facts).

The only question raised upon the appeal is as to the ruling of the circuit court in sustaining the demurrer and dismissing the bill. The ground upon which the demurrer was sustained does not appear from the record, but from the briefs and arguments of counsel it is apparent that it was sustained upon the authority of Gage v. Cummings, 209 Ill. 120, 70 N. E. 679, and for the reason that the contract was lacking in mutuality, because William D. Eppstein was not a party to it.

In the Gage Case, the contract was between Henry H. Gage and Norman P. Cummings, while a part of the legal title was in Mary B. Gage. We there held that the contract was not mutual, for the reason that Cummings could not have specifically enforced it against the owners of the real estate which Gage agreed to convey, because Gage did not have the legal title to all of it, and therefore the contract was not mutual and Gage could not enforce it against Cummings. We also held in that case that the mere fact that Mary B. Gage, within the time limited by...