Mcfarlane v. Williams

• Decision Date: 16 June 1883
• Citation: 1883 WL 10264,107 Ill. 33
• Parties: HUGH MCFARLANEv.WILLIAM H. WILLIAMS.
• Court: Illinois Supreme Court

107 Ill. 33

1883 WL 10264 (Ill.)

HUGH MCFARLANE

v.WILLIAM H. WILLIAMS.

Supreme Court of Illinois.

Filed at Ottawa Jun. 16, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. GEO. GARDNER, Judge, presiding.

William H. Williams filed his bill in equity, in the office of the clerk of the Superior Court of Cook county, against Hugh McFarlane, on the 29th day of July, 1881, wherein it was, in substance, alleged, that about the 15th of May, 1880, the Charter Oak Life Insurance Company, of Hartford, Connecticut, was the owner of lots 1 to 5, and lots 10 to 17, inclusive, in Dobbins' subdivision of block 55, of school section addition to Chicago; that defendant was, at that date, desirous of purchasing the same, and employed complainant to negotiate for the purchase thereof; that it was then agreed between complainant and defendant, that in case complainant should procure for defendant the purchase of said premises, defendant would lease to said complainant a portion of said premises, namely, lots 1 to 5, and 10 to 14, both inclusive, for a term of years, upon favorable terms; that complainant, acting in good faith, commenced to negotiate for the premises first aforesaid on behalf of defendant; that to make said agreement more binding, it was agreed, in writing, on the 15th of May, A. D. 1880, that in case said defendant should purchase the first aforesaid premises, he would lease the complainant the last aforesaid premises for the term of one year, commencing on the 1st day of May, A. D. 1880, with the option to complainant to continue said lease for a second year, and again for a third year, with the proviso, that in case defendant should sell or desire to improve said premises, then, in such case, complainant should not have the possession of said premises for said third year; that the yearly rental of said premises should be $1513.84, payable at the end of each year; that said amount was made subject to any errors in figuring six per cent on a valuation of said premises leased as aforesaid, fixing said valuation at $23,564, and the complainant was to pay, as additional rent for said premises, the taxes upon the same for the years so leased,--which contract was duly recorded in the proper office, July 28, 1880, and a copy thereof is annexed to the bill, as an exhibit.

It is further alleged in the bill, that on or about the date of said written contract defendant entered into a contract with said Charter Oak Life Insurance Company to purchase the first above described premises, and subsequently to the entering into said contract to purchase, and prior to the 1st day of May, A. D. 1881, said purchase was duly consummated, and the defendant received from said insurance company a warranty deed of the premises first above described; that since said 1st day of May, A. D. 1881, the defendant has been in possession of said premises, and, although often requested, has not executed to complainant a lease in accordance with the terms of said contract, nor given possession of said premises to complainant, but has refused, and still refuses, to do so. It is further alleged that complainant is negotiating to lease said premises to other parties, and if he should succeed in doing so, and give them possession, it would cause endless suits, and take months, and perhaps years, to dispossess them, and thereby cause irreparable injury to complainant. It is further alleged that complainant has, in every way, complied with the terms of said contract, and is ready and willing to sign a lease in accordance with said contract, and in every way to comply therewith.

The prayer is that defendant answer without oath, and that he be decreed to execute a lease in accordance with the terms of said contract; that he deliver possession of said premises to complainant; that in case he shall refuse to execute such lease the master in chancery shall execute the same; that the value of the use of said premises from the 1st day of May then last, to the time complainant is given possession, be ascertained, and such amount deducted from the rent due defendant on the 1st day of May, 1882, etc., and for general relief, etc.

The defendant answered the bill, admitting the purchase of the lots from the life insurance company, but denying that he employed complainant to make the purchase, or that complainant acted for him in making said purchase, or that he agreed to lease complainant any of said lots. The answer then sets up and relies upon the Statute of Frauds. It is further alleged in the answer, that the life insurance company, its agent or attorney, employed complainant to assist its solicitor, Judge Van H. Higgins, in making the sale of said lots to defendant, and has paid complainant for his services in rendering such assistance; that defendant admits signing the written contract made an exhibit to the bill, but alleges that he did not receive from complainant any consideration for such signing, and that it is null and void; that complainant rendered defendant no services, as recited in that instrument, but complainant was employed and paid by said insurance company, or by its agent or solicitor, Judge Van H. Higgins; denies that the legal effect of such agreement is, that yearly rental should be $1513.84, payable at the end of each year, or that the rent was to be on the basis of six per cent on a valuation, but avers that at the time of signing said agreement the figuring was on a basis of seven per cent, instead of six, and that there was no consideration paid defendant for signing same; denies that he has been in possession since May 1, 1881, but says that Warren Springer, with complainant's consent, was in possession of same under a lease from one Holton, from the time defendant bought until the 28th of May, 1881, when defendant bought from Springer a building which covered a large portion of lots 1 to 5, and 10 to 14, inclusive; that immediately after the purchase of said building defendant expended $8000 and upwards in repairing it, and thereby increased the rental value of the property, and shortly thereafter leased it to Charles Karstner & Co., who are now occupying the same; denies that complainant has kept his agreement; alleges delay and laches in filing the bill; alleges that complainant was insolvent at and for a long time prior to May 1, 1881, and claims, finally, that complainant's remedy, if he has any, is at law.

On final hearing the court decreed a specific performance in conformity with the prayer of the bill. From this decr?? an appeal was prosecuted to the Appellate Court for the First District, where the decree of the Superior Court was affirmed. The present appeal is from that decision. Mr. WM. H. & Mr. J. H. MOORE, for the appellant:

The contract is so indefinite and uncertain that no one can tell when the rent is payable, or how much. A valuable consideration, particularity, certainty, and a necessity for performance, are the requisites upon which the equity of the case arises. Waterman on Specific Perf. secs. 6, 141, 149.

If any of the material portion of the terms be omitted or left in doubt, the court will regard the transaction as imperfect, and resting in treaty only. Taylor on Landlord and Tenant, sec. 46, and note; Grace v. Dennison, 114 Mass. 17; Nichols v. Williams, 22 N. J. 17; Gosse v. Jones, 73 Ill. 509; Brix v. Ott, 101 Id. 74.

The contract is not based upon any consideration, and can not be enforced. Gilbert v. Holmes, 69 Ill. 556; Lear v. Chouteau, 23 Id. 42; Taylor v. Merrill, 55 Id. 61; Frisbie v. Ballance, 4 Scam. 287.

Williams was insolvent on and prior to the 1st day of May, 1881,--the time when the tenancy was to commence. Insolvency is a bar to the specific contract for a lease. Taylor on Landlord and Tenant, sec. 47; Waterman on Specific Perf. sec. 433; Fry on Specific Perf. sec. 634; Pomeroy on Specific Perf. sec. 332.

The case of the complainant is barred by change of circumstances, laches, and lapse of time. Williams sat by until July 29, 1881, when McFarlane had expended $10,000 upon the building, and three months after May 1, when the tenancy was to commence, before filing his bill.

The enforcement of a contract is within the sound legal discretion of the court. Courts always hesitate to compel specific performance “when there is anything, by reason of the change in circumstances in regard to the property, that makes it unconscionable” for them so to do. Iglehart v. Vail, 73 Ill. 65; Kimball v. Tooke, 70 Id. 565; Stone v. Pratt, 25 Id. 25; Fish v. Lesser, 69 Id. 396; Mississippi and Missouri R. R. Co. v. Cromwell, 91 U. S. 645. Time is the essence of a contract for a lease. Waterman, sec. 460; Taylor on Landlord and Tenant, sec. 49.

Mr. H. C. NOYES, and Mr. E. S. WILLIAMS, for the appellee:

If there is no usage or agreement to the contrary, the rent is payable at the end of the term. Taylor on Landlord and Tenant, sec. 391; 3 Kent's Com. 374; Dixon v. Niccols et al. 39 Ill. 386.

As to the taxes, they could not, from the nature of the case, be made payable at any particular time. As to the consideration, it was sufficient that Williams agreed to pay rent.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The objections relied upon by counsel for appellant for a reversal of the judgment below, will be noticed, so far as deemed important, in the order in which they are urged in their printed argument.

First--It is contended the alleged contract for a lease is indefinite and uncertain. This is the language of the contract:

“It is hereby stipulated and agreed, that in case I purchase lots 1 to 5, and...