Mason v. Griffith
| Decision Date | 19 December 1917 |
| Docket Number | No. 11735.,11735. |
| Citation | 281 Ill. 246,118 N.E. 18 |
| Parties | MASON v. GRIFFITH et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Cook County; Thomas G. Windes, Judge.
Bill by William Mason against Louisa H. Griffith and others, wherein defendants filed a cross-bill. From the decree dismissing the bill, the complainant appeals. Reversed and remanded, with directions.
Cavender & Kaiser, of Chicago, for appellant.
O'Shaughnessy & O'Shaughnessy, of Chicago (Lawrence Harmon, of Chicago, of counsel), for appellees.
The appellant filed a bill in the circuit court of Cook county to foreclose two mortgages given to secure a part of the purchase price of the mortgaged real estate. The defendants answered, and filed a cross-bill asking for the rescission of the contract of purchase of the premises in question on account of fraud. The cause was referred to a special commissioner, and on a hearing upon exceptions to his report a decree was rendered dismissing the bill for want of equity, setting aside the deed from the appellant to the appellees, ordering the mortgages released, the notes secured by them canceled and surrendered, setting aside a judgment which had been rendered on the notes, and again referring the cause to the commissioner to take further evidence as to damages sustained by the appellees, as alleged in their cross-bill. A freehold being involved, the complainant appealed to this court.
The appellees' cross-bill avers that they made an offer to exchange a building which Louisa H. Griffith owned for one of the appellant's buildings, which he rejected, and they then informed him that they had no money to pay down and could only make the purchase on monthly payments, and if they bought the building it was their purpose to live in one of the flats and rent the other; that he agreed to sell them the building upon monthly payments for $7,000, $4,000 being a first mortgage which they were to assume and $3,000 payable in monthly installments; that the value of the lot and building, fully completed, was $6,250, but for the privilege of paying the purchase price in monthly installments of $35 the appellees agreed to pay $750 more than the value of the premises; that the appellant stated that the building would be equipped with a heating plant that would use 12 tons of soft coal, only, and would be completed in a thorough and workmanlike manner; that screens would be furnished for all windows above the basement; that a refrigerator would be installed with proper drainage connections, and that electric lights would be installed in the basement; that the appellees had no knowledge of the proper mode of constructing a steam-heating plant, but relied on the representations of the appellant that the heating plant would be finished in a thorough and workmanlike manner and of an adequate capacity to heat the building; that appellant did not install an adequate heating plant, did not equip the building with screens, did not install ice boxes with adequate drainage, did not place electric lights in the basement, and did not complete the construction of the building and point up the brickwork of said building in a thorough and workmanlike manner; that he did not furnish a sufficient roof for the building and sun parlor; that the roof at all times leaked, causing injury to the building; that the appellees had frequently requested the appellant to complete the building, but he failed and refused to do so, and because of his neglect and default the appellees had been unable to keep the second floor rented; that to properly complete the building and make necessary changes in a workmanlike manner the appellees expended the sum of $400; that the heating plant alone would cost $175 in addition, and by reason of the failure to complete the building they lost rentals of $35 a month from May 1, 1916.
The cross-bill further avers that because of the appellant's promises they executed the notes in question; that the appellant fraudulently procured from the appellees 85 notes, with powers of attorney attached, providing for an attorney's fee of $10 on each note, with the fraudulent design of trying to force a situation whereby he could find a pretense or excuse to enter judgment on all the unpaid notes or force a pretended default; that he fraudulently refused to complete the building, to install screens, to put the roof in proper condition, to install proper ice boxes and dramage, and to put electric lights in the basement, and in carrying out his fraudulent design caused a judgment to be entered in the circuit court of Cook county upon 73 of the notes prior to the filing of his bill for foreclosure and caused an execution to be levied upon other property Louisa H. Griffith, thus depriving the appellees of the benefit of the monthly payments for which they had paid the extra consideration. The appellees notified the appellant before the entry of the judgment that payments of the notes would be withheld until he completed the building according to his agreement, and they offered to reconvey the premises to the appellant provided he would discharge the indebtedness against the appellees and reimburse them for the expense they had been put to for work in and about the premises, including screening and inclosing of porches, filling the yard with black soil and planting shade trees, grass, and shrubbery, to the value of $300. The appellees paid 12 of the notes, taxes on the premises, and interest on the first mortgage, which payments they were willing to allow the appellant as compensation for the period of occupancy by them and such rent as they had collected. The appellees represented that by reason of the fraudulent acts of the appellant they have a right to rescind the contract and reconvey the property, and tender a reconveyance upon such equitable terms as the court may direct, and they asked for a rescission of the contract and an accounting, or, in case a foreclosure is entered, an account of damages they have sustained by reason of the appellant's default in his contract with them and a reduction in the purchase price of $750.
We shall not go into a detailed analysis of the evidence, but shall state our conclusions from it. It appears from the record that the appellant in June, 1915, and before that time, had erected a number of similar flat buildings in the same vicinity in the city of Chicago. The appellees purchased of the appellant one of these buildings which was in process of construction, and the appellant agreed to complete the building in a workmanlike manner the same as the other buildings, to permit the appellees to select their own electric light fixtures and to furnish screens for all windows above the basement, and represented that the heating plant was adequate to heat the two flats and that he would guarantee that it would do so. The building then had only one rough coat of plaster, but the appellant stated that it would be completed by the 1st of August. The appellees took possession of the building on August 16, 1915, though it was not then complete, and the workmen were at work in the building for a month after the appellees went into possession. There was a mortgage for $4,000 on the property, and the purchase price was $7,000. For the $3,000 difference the appellees executed 85 promissory notes, payable monthly, each for $35 except the last, which was for $60. The first 36 of these notes were secured by a mortgage and the remainder by another mortgage. These were the two mortgages sought to be foreclosed. The heating plant failed to heat satisfactorily the upper flat, and for this reason the tenant of the upper flat moved out in May, [281 Ill. 251]1916. Screens were not furnished for eight windows above the basement, drainage pipes were not connected with the ice boxes, the electric light fixtures in the basement were not furnished, and the roof leaked. Appellees have lived in one of the flats ever since they took possession of the building and have rented the other, except during the time that the tenant moved out on account of...
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