Lang v. Parks

• Decision Date: 31 March 1960
• Docket Number: No. 35594,35594
• Citation: Lang v. Parks, 19 Ill.2d 223, 166 N.E.2d 10 (Ill. 1960)
• Parties: Sam LANG, Appellant, v. Dorothy PARKS et al., Appellees.
• Court: Illinois Supreme Court

Page 10

166 N.E.2d 10

19 Ill.2d 223

Sam LANG, Appellant, v. Dorothy PARKS et al., Appellees.

No. 35594.

Supreme Court of Illinois.

March 31, 1960.

Clarence J. Hayden, Manteno, for appellant.

Stouder & Stouder, Kankakee, for appellees.

DAILY, Justice.

Complaint was filed in the circuit court of Kankakee County by Sam Lang, vendor under a real-estate contract, against Dorothy Parks, the vendee, (herein referred to as defendant,) to enjoin the defendant from interfering with plaintiff's alleged ownership of the premises and, in response thereto, defendant counterclaimed for specific performance. From a decree dismissing the complaint and granting specific performance, plaintiff now prosecutes a direct appeal to this court. A freehold is involved. Livingston v. Meyers, 6 Ill.2d 325, 129 N.E.2d 12.

The property in question consists of three lots located in the village of St. Anne which, on April 28, 1954, plaintiff contracted to sell to defendant and her husband, (the latter since deceased), as joint tenants. The contract fixed a price of $1200, acknowledged a down-payment of $200, and provided for payment of the balance, with interest, in installments of not less than $15 on the first day of each month. In addition, defendant agreed to pay all taxes subsequent to 1953. Time of payment was declared of the essence and it was agreed that plaintiff, at his option, could forfeit the contract should defendant default upon the agreed payments. Defendant went into possession, built a house, and thereafter made cash payments to plaintiff of $15 each month but on irregular dates until May, 1958, at which time a dispute arose between the parties. Of the forty-eight installments paid prior to that date, only two were made on the first day of the month, the remainder being paid and accepted anywhere from one to twenty-five days late.

Plaintiff testified that he received no installments after May, 1958, and was required to pay the real-estate taxes due in that year, whereupon, on August 22, 1958, he served upon defendant a notice demanding payment within 30 days of the entire contract balance, which he stated was $700, upon penalty of forfeiture, and that when she did not comply, he forfeited the contract and formally demanded possession of the property on November 25, 1958. Defendant, on the other hand, testified that she attempted to make a cash payment of $15 to plaintiff on June 19 or 20, 1958, but he refused the money and demanded the property back, after which, on July 19, 1958, she obtained a $30 bank draft and sent it to plaintiff by certified mail only to have it returned unclaimed. Defendant also stated that during the following month, on August 14, 1958, she procured another bank draft, this time for $15, and sent it, along with the prior draft, by certified mail to plaintiff but the letter was refused and subsequently returned. The bank drafts showing Sam Lang, as payee, certified mail envelopes bearing the postal notations 'unclaimed' and 'refused,' and a post-office receipt for certified mail sent to Sam Lang on August 14, 1958, were produced by defendant and admitted in evidence. Defendant further testified that on August 25, 1958, plaintiff refused to accept a tender of all sums then due on the contract, including real-estate taxes, and that thereafter she was prepared to honor her contract obligations but plaintiff refused.

The record indicates that in November, 1958, plaintiff filed suit against defendant in a local justice-of-the-peace court for possession of the property and, upon hearing, the latter produced the bank drafts that had been refused, whereupon the case was dismissed and no appeal taken by plaintiff. It also appears that the house built by defendant on the property was almost totally destroyed by fire in February, 1959, that plaintiff claimed the proceeds of insurance taken out by defendant, and that the insurance company, which was made a party defendant in this case has withheld payment pending the determination of the suit.

Where a contract may be forfeited at a vendor's option, it is not the default itself but rather the exercise of that option after default which serves to terminate the agreement (Brown v. Jurczak, 397 Ill. 532, 74 N.E.2d 821) and even though time of payment may be declared of the essence, the vendor's right may be temporarily abrogated by his regular acceptance of prior payments at irregular intervals. Kingsley v. Roeder, 2 Ill.2d 131, 117 N.E.2d 82; Davis v. Dayton, 298 Ill. 201, 131 N.E. 578; Smith v. Treat, 234 Ill. 552, ...