Macy v. Brown
| Decision Date | 11 October 1927 |
| Docket Number | No. 18160.,18160. |
| Citation | 158 N.E. 216,326 Ill. 556 |
| Parties | MACY v. BROWN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Cook County; Ira Ryner, Judge.
Suit by George E. Macy against Walter H. Brown and others. From a decree dismissing the bill for want of equity, complainant brings error.
Reversed and remanded, with directions.
Rathje, Wesemann, Hinckley & Barnard, of Chicago, for plaintiff in error.
Scott, Bancroft, Martin & MacLeish, of Chicago (Leland K. Neeves, of Chicago, of counsel), for defendants in error.
Plaintiff in error, George E. Macy (hereinafter called complainant), has sued out a writ of error from this court to review the decree of the circuit court of Cook county dismissing for want of equity a bill filed by him to compel the specific performance of a contract for the sale of real estate.
The bill alleged: That on March 11, 1918, defendant in error Walter H. Brown leased a portion of the premises in question to complainantfor a period of five years, and that the written lease contained the following clause:
The on September 2, 1922, complainant gave notice to Brown of his intention to exercise the option to purchase the premises for the amount specified in the lease; that he had tendered to Brown $18,000 for the purchase of the premises in execution of the option and that Brown had declined and refused to accept the same and had refused to execute a deed for the premises; that complainant had at all times been ready and willing to perform the contract but that Brown had at all times refused to convey the premises. The bill tendered performance of the contract by the complainant. The bill further alleged that Vina Brown, William F. Dunn and Reidar Moe claimed some interest in the premises, and they were made defendants.
Dunn and Moe answered, stating that they were tenants under short-term leases from Brown of portions of the premises. Vina Brown answered that she is the wife of Walter H. Brown, and claimed an inchoate right of dower in the premises mentioned in the bill, and denied that she had entered into any contract with complainant. She also claimed that the premises in question were her homestead. Brown answered, admitting the execution of the lease containing the option, but denied that it was agreed that complainant should have the option to purchase the whole of the premises described in the bill of complaint for $18,000. He admitted that complainant had given him the written notice on September 2, 1922. He denied the other material allegations of the bill, and denied that he does now refuse to carry out the contract or convey the premises to complainant, and stated that, because of the failure and refusal on the part of the complainant to perform the conditions required to be performed by him as a condition to the exercise of the option, Brown subsequent to the 11th day of March, 1923, refused to convey the premises to complainant, and that he was justified in so doing by reason of the failure of complainantto perform the conditions of the contract. Complainant filed a replication to the answer.
The cause was referred to a master in chancery, who heard the evidence and reported his conclusions and recommendations to the court. There was very little conflict in the evidence, and the master found that Brown was on the 11th day of March, 1918, the owner of the premises described in the bill, and that on that day he and complainant entered into a written lease signed by both of them, in and by which Brown demised to complainant for a term of five years from March 11, 1918, ‘a certain storeroom situated on the ground floor of the building known and designated as Nos. 2661 1/2 and 2663 East Seventy-Fifth street, in the city of Chicago and state of Illinois, and all outhouses and part of basement used in connection with the hardware business now conducted on said premises'; that the lease contained the option clause as hereinbefore set forth; that at the time of the filing of the bill Brown resided in the west flat on the second floor of the building in question with his wife and family and Dunn occupied the east flat on the second floor under a short-term lease; that on September 2, 1922, 6 months and 9 days prior to the expiration of the lease, complainant delivered to Brown a written notice advising him that he desired to purchase the property for $18,000 cash, in accordance with the option contained in the lease, and that complainant was ready and willing to proceed with the purchase at any time from that date forward, and that the purchase price would be available for delivery to Brown at such time as he might desire and at his convenience; that Brown made no reply to this notice; that on Monday, March 5, 1923, complainant, with two of his attorneys, went to Brown's flat with $18,000 in United States gold certificates and offered them personally to Brown.
The master, in his report as to what occurred on this occasion, stated that complainant testified that he told Brown that he had come to make the tender in exercisingthe option to purchase the property; that he had with him $18,000 in gold certificates; that he offered them to Brown, and Brown replied that he would do nothing until he had consulted his attorney; that complainant's counsel then took the money and again tendered it to Brown and showed him that the full $18,000 was there and asked him to count it; that Brown made no effort to extend his hand but simply replied that he would have to see his attorney before taking any action; that complainant had with him a short form of warranty deed from Brown to complainant conveying the premises for the consideration of $18,000 and releasing his rights under the homestead exemption laws of the state of Illinois, dated March 5, 1923; that the deed was complete, except for the signature of the grantor and the name, signature, and seal of the notary public upon the blank for the certificate of acknowledgment; that complainanttestified that he had offered the money to Brown, and that his counsel had stated to Brown, ‘By signing this little piece of paper you will get this money, $18,000;’ that Brown would accept nothing from him, paper or money or anything else; that complainant and his counsel then asked Brown to sign the deed after the $18,000 had been offered to him; that the offer of the $18,000 was not made upon the condition that Brown execute the deed, but was made for the purpose of exercising the option, and that afterwards the deed was offered to transfer the property, and that there was a distinct offer of $18,000 made to Brown, irrespective of the deed.
In his report the master further stated: That Brown testified that complainant introduced his lawyers, and said that they had come to exercise the option given complainant, and had there $18,000 in gold certificates which they would turn over to him when he signed the deed; that Brown asked complainant if the other two men were his lawyers, and complainant said they were, and that Brown said that he would like to be represented by lawyers in the matter and stated the name of the firm representing him; that complainant's lawyer asked him, ‘Then you refuse this tender?’ and that he replied, ‘I didn't say that; I said I wanted to be represented by my lawyers in this, the same as Mr. Macy is;’ that one of the men said that he could have the $18,000 by simply signing the deed, and that the deed was in the possession of one of complainant's lawyers, was not unfolded, and was referred to in the conversation as a ‘paper’ and was not examined by Brown; that on Friday, March 9, 1923, complainant's attorneys wrote Brown a registered letter, which was received by him on Saturday, March 10, 1923, which contained the following:
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