Lang v. Hedenberg

Decision Date04 April 1917
Docket NumberNos. 10833,10834.,s. 10833
Citation277 Ill. 368,115 N.E. 566
PartiesLANG et al. v. HEDENBERG. SUMMERS v. SAME.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to Appellate Court, First District, on Appeal from Circuit Court, Cook County; Thomas G. Windes, Judge.

Bills in equity by John Lang and others against James W. Hedenberg, and by Robert F. Summers against James W. Hedenberg. From judgment of Appellate Court (198 Ill. App. 460, 470) affirming decrees of circuit court for plaintiffs, defendant brought certiorari, and the cases were thereafter consolidated. Affirmed.

Bradley, Harper & Eheim, of Chicago (Thomas E. D. Bradley and Edward J. Farrell, both of Chicago, of counsel), for plaintiff in error.

Rubens, Fischer, Mosser & Barnum and Dawson & Dawson, all of Chicago (George E. Dawson, of Chicago, of counsel), for defendants in error.

CARTER, J.

A bill in equity was filed by defendant in error Summers and one by defendants in error the Langs, in the circuit court of Cook county, against plaintiff in error, each praying, among other things, that a certain contract between the respective parties to such bills for the sale of real estate be declared void, that an affidavit filed in the recorder's office of Cook county by plaintiff in error be removed as a cloud on the title of defendants in error, and that plaintiff in error be enjoined from setting up any further rights under said contracts. The two contracts were on material points practically identical, except as to the parties and the land involved. Both cases were referred to the same master in chancery, who reported as to both that the relief prayed for should be granted. A decree was entered by the circuit court in each case approving the master's report. On appeal to the Appellate Court both decrees were affirmed, and both cases have been brought to this court on petition for certiorari. They have since been consolidated.

The two tracts of land involved in these cases lie adjoining one another in Cook county, near the Chicago, Milwaukee & St. Paul Railroad Company's right of way. Both were originally owned by defendant in error Summers, who had contracted to convey a portion of the land to the Langs. Plaintiff in error, desiring to purchase both tracts together as one tract, entered into negotiations with the three defendants in error at the same time, which culminated in the two separate contracts involved in these proceedings, dated October 21 and October 23, 1913, respectively.The consideration in each was $29,500. Each provided, among other things, that $1,000 earnest money was paid down at the time of the execution of the contract, to be applied on the purchase when consummated, and that the purchaser agreed to pay, within 30 days after the title had been examined and found good or accepted by him, the further sum of $4,000, and the further sum of $5,000 within 60 days after such examination and acceptance of title, provided--

‘a good and sufficient general warranty deed conveying to said purchaser a good and merchantable title to said premises, subject as aforesaid, shall be ready for delivery. The balance to be paid as follows: The remaining sum of $19,500 by purchaser giving his promissory note therefor, payable in installments of $6,500 each, on or before one, two and three years, respectively, after its date, with interest at the rate of five and one-half per cent. per annum, payable semiannually, said note to be secured by a trust deed of even date with said note on said premises, in such form as seller may direct. * * * This contract and the said earnest money shall be held by the Chicago Title & Trust Company in escrow, and when the payment of the respective sums of $4,000 and $5,000 shall have been deposited by purchaser with said Chicago Title & Trust Company in accordance with the terms of this contract, seller shall deposit with said company a good and sufficient warranty deed conveying said property to purchaser and purchaser shall deposit the notes and trust deed aforesaid securing said balance of $19,500 purchase money, said deeds shall be recorded, the examination of title continued by said Chicago Title & Trust Company, and upon its report that purchaser has good title to said real estate, subject to said incumbrance of $19,500, said sum of $10,000 held by it and said notes and trust deed shall be delivered by it to sellers and said warranty deed to purchaser. Should said purchaser fail to perform this contract and make the payments herein provided for within the times herein specified, any sums deposited by said purchaser with said Chicago Title & Trust Company in accordance with the provisions of this contract shall be forfeited as hereinafter provided and same shall be paid to sellers and this contract delivered up to him, and said escrow agreement shall so provide.’

Time was made the essence of the contracts. These contracts were put in escrow with said Chicago Title & Trust Company, along with the earnest money of $1,000. The abstract was brought down to date, and delivered to Hedenberg, and the proof shows, and the master found, that he stated the title was satisfactory, and that he would shortly make the further payments provided by the contracts. When the time for the payment of the $4,000 arrived, plaintiff in error on repeated demands failed to pay the money, and also failed to pay the $5,000 when it fell due, on the ground that he did not have the money. Evidence was offered before the master to the effect that plaintiff in error intended, when he started the negotiations, to have these contracts taken off his hands by certain people in Canada, and because of their failure to take over the contracts he was not able to make these payments as he expected. In view of the record in this case and the fact that the plaintiff in error executed these contracts, we do not think this evidence material. The evidence is in accord with the master's finding and the decree of the circuit court that the plaintiff in error failed to make the payments for the reason that he was unable to get the money, and that he gave no other reason and made no objection of any kind to the title of defendants in error.

On April 13, 1914, each of the defendants in error gave a notice to plaintiff in error, in which it was demanded that he comply with all the terms, stipulations, and provisions of said contract, and that unless he complied with such terms and deposited the money and the note and trust deed securing the same, as required by the contract, and performed ‘all of the other terms and conditions of the said contract by you to be performed to entitle you to a deed from the undersigned, on or before the 4th day of May, A. D. 1914,’ the signer or signers of the notice would forfeit and cancel said contract and elect to retain the $1,000 earnest money as liquidated damages. On May 5, 1914, defendants in error notified plaintiff in error in writing that they elected to declare the contracts forfeited and to retain said $1,000 as liquidated damages. On May 29, 1914, plaintiff in error filed an affidavit in the recorder's office of Cook county, claiming an interest, as purchaser, in said property acquired by said written contracts, stating that he had paid as earnest money $1,000, and that the time for the performance of the various provisions in said contracts had, by agreement, been extended from time to time, and that defendants in error were seeking to fix an arbitrary time for performance and to cancel the contracts and retain the $1,000, and that the contracts were in full force and effect. The bill in each case sought to have this affidavit declared null and void and removed as a cloud on the title. Without question, from the record before us, it is shown, and plaintiff in error concedes, that he had not deposited the $4,000 or $5,000 payments, or performed any of the conditions required of him by said contracts before receiving said notices of May 5th that the contracts had been forfeited.

Counsel for defendants in error insist that this court is without jurisdiction, as the amount involved is not more than $1,000. There might be merit in this contention if the bill were filed in each case only for the purpose of forfeiting the $1,000, but each bill was filed for the purpose of removing a cloud from the title, canceling the contract, and enjoining any further act on the part of the plaintiff in error to enforce the contract. Clearly, the purpose of these suits was not the recovery of money or property, and therefore the right of review in this court is not determined by the amount involved. Tosetti Brewing Co. v. Koehler, 200 Ill. 369, 65 N. E. 636;Baber v. Pittsburg, Cincinnati & St. Louis Railroad Co., 93 Ill. 342. This court has jurisdiction of the cases.

Counsel for plaintiff in error argue that the notices of April 13, 1914, extended the time of payments until May 4, 1914, and that the time was also extended by the failure of defendants in error to enforce the forfeiture of the contracts, and by their acquiescing, in effect, in the extension of the time after various talks with plaintiff in error, in which the latter stated that he was not able to pay then but would pay later. No testimony is found in the record that tends to support the argument of counsel that defendants in error agreed...

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27 cases
  • Geary v. Dominick's Finer Foods, Inc.
    • United States
    • Illinois Supreme Court
    • June 19, 1989
    ... ... (Lang v. Hedenberg (1917), 277 Ill. 368, 376, 115 N.E. 566 ("the ... Page 350 ... [135 Ill.Dec. 854] law did not require the doing of the useless and ... ...
  • United Brick & Tile Co. v. Ault
    • United States
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    • December 20, 1938
    ... ... 823; ... Gaylord v. McCoy, 161 N.C. 685, 77 S.E. 959; ... Schmidt v. Scandanavian-Canadian Land Co., 136 Minn ... 14, 161 N.W. 218; Lang v. Hedenberg, 277 Ill. 566, ... 115 N.E. 566. (4) The questions of liability under either the ... deed or the contract are governed by the laws of ... ...
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    ... ... v. Cobden Machine Works (1949), 336 Ill.App. 394, 84 N.E.2d 173.) The law will not require the doing of a useless and futile act (Lang v. Hedenberg (1917), 377 Ill. 368, 115 N.E. 566)." Haas v. Cravatta (2d Dist.1979), 71 Ill.App.3d 325, 27 Ill.Dec. 414, 417, 389 N.E.2d 226, 229 ... ...
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