Miller v. Clark

• Decision Date: 10 February 1922
• Docket Number: No. 14258.,14258.
• Citation: 133 N.E. 685,301 Ill. 273
• Parties: MILLER v. CLARK et al.
• Court: Illinois Supreme Court

301 Ill. 273

133 N.E. 685

MILLER

v.CLARK et al.

No. 14258.

Supreme Court of Illinois.

Dec. 22, 1921.

Rehearing Denied Feb. 10, 1922.

Bill by John H. Miller against H. H. Clark and others. Decree for defendants, and, plaintiff having died, his administrator, Charles Miller, and heirs at law appeal.

Affirmed.

Appeal from Circuit Court, Madison County; J. F. Gillham, judge.

R. F. Tunnell, Jr., of Edwardsville, for appellants.

Warnock, Williamson & Burroughs, of Edwardsville, for appellees.

CARTER, J.

This was a bill filed by John H. Miller against appellee H. H. Clark for the specific performance of an alleged contract for the sale of lots in Madison county. A default was entered against Clark, and the cause was referred to a master in chancery, but the order of reference was later set aside and an intervening petition allowed to be filed making appellees F. W. Davis and the Home Building & Loan Association of Edwardsville, Illinois, parties. The intervening petition was withdrawn, and the last two named parties by leave filed an answer, which denied Clark's authority, under the alleged contract of sale with Miller, to convey the two lots, and alleged that a deed had been made to the lots, without notice of Miller's alleged contract, to Davis and H. A. Anderson, who had built lasting improvements on said lots. By an amended answer Davis and Anderson also set up the statute of frauds as a defense. The matter was thereafter referred to a special master in chancery for hearing; the bill as to Clark being taken as confessed. The master's report recommended a decree for specific performance of the contract under certain conditions, but the chancellor thereafter sustained exceptions filed by appellees to the report and dismissed the bill for want of equity, and the cause is now here on appeal by the administrator and heirs at law of Miller, who has died.

Under the allegations of the bill and the evidence on the hearing it appears that the lots described in the bill of complaint are located in what is known as the Roxana subdivision, in Madison county, at or near Wood River; that at the time the subdivision was platted the property was, in fact, owned by H. F. Bowman, of Alton, Ill.; that Bowman, before platting the same, caused the title to be conveyed to Clark as trustee, Clark living in Wood River and being the cashier of the First State & Savings Bank there; that, as the subdivision was located nearer to Wood River than to Alton, it was thought the property could be more conveniently handled by Clark than if the papers as to each transaction had to be signed by the real owner, Bowman. After the property was platted in the Roxana subdivision Bowman employed Davis to take charge of the subdivision and sell the lots therein, it being arranged that when the lots were sold for cash the purchase money was to be paid to Clark and the description of the lot sold reported to him, whereupon he was to execute a deed therefor and give it to Davis, who was to deliver it to the purchaser; that when lots were sold on the installment plan a time-payment contract was executed in triplicate, one of which was to be given to the purchaser, one to Clark to be retained by him in the bank for future reference, and the other to be retained by Davis in his office. It further appears that about August 24, 1917, E. G. James, one of Davis' salesmen, took Miller, his brother, and two of his neighbors to the Roxana subdivision and showed them over the property; that during this visit to the subdivision a sale was attempted to be made to Miller by James of two lots in the subdivision, the property being described, as claimed by appellants, as lots 5 and 6 in block 5 in said subdivision, and Miller paid $180 in cash to James as full payment for one lot, which appellants claim was lot 6 in block 5, and thereafter James issued to Miller a receipt reading as follows:

‘Amt. Paid, $180.

Date, 8/24, 1917.

‘Received of J. H. Miller one hundred eighty dollars as first payment on lot No. 6, block No. 5, Altwood subdivision, East Alton, Madison county, Ill. Purchase price to be 180 dollars.

‘This receipt must be presented at the office of F. W. Davis, sales manager, and exchanged for regular contract. All sales subject to approval of sales manager. Payment in full.

‘E. G. James, Salesman.’

The above receipt was on a printed blank which had been prepared for use as to lots in the Altwood addition and had apparently been changed by James to meet the requirements of the sale of the lots in the Roxana subdivision to Miller, except that ‘Altwood’ was not changed to ‘Roxana.’ On the same day this transaction was entered into, Miller, for himself, or, as some of the evidence tends to show, for his mother, paid $14, presumably as part payment on lot 5 in block 5. At the same time James executed and delivered to Miller a contract which as originally written, as asserted by counsel for appellants, was for lot 5 in block 5. This contract was not signed by Clark in any way, either as an individual or as trustee, or by any one authorized by him to sign the same in his name. It appears to have been prepared on a printed form on which the name ‘H. H. Clark, Trustee,’ was printed. Davis' signature to this contract under Clark's name appears to have been written by James for Davis, although there is nothing in the record to show that James had authority to act in any way for Clark in the sale of these lots, and in connection with this sale he appears to have been unknown to Clark. This contract was executed in triplicate, two of the copies being delivered by James to Davis, and the other copy being given to Miller. It would appear that when the report as to the sale of lot 6 was made to Davis by his salesman, James, it was unintentionally reported as lot 6 in block 4 instead of lot 6 in block 5, and thereupon Davis, procured from Clark and wife a warranty deed to Miller for lot 6 in block 4, which he mailed either to Miller, or to his mother for him, at Glen Carbon, Ill. Miller was not married, and resided with his mother, Isabelle Miller. This deed has at all times since been retained by Miller and his heirs, and was at the time of the trial, and is now, in their possession, and it has never been returned to Clark or Davis, and the evidence tends to show that no one for appellants ever offered to return it, and, although complaint was made to Clark that the description in the deed was erroneous, there never was any demand made by or on behalf of Miller or his heirs for the return of the $180 cash payment.

It further appears that, when Davis discovered that Miller had been given a deed to one lot in block 4 and had also been given a contract to another lot in block 5, he sent James to Miller's home at Glen Carbon to make some arrangement to put the two lots together in the same block. When James called at the Miller residence he found Miller absent, but Mrs. Miller was in, and he explained the situation to her and they found the contract for the lot. Without any objection on the part of Mrs. Miller, and, it would seem, with her consent, James changed the block number in the contract so that after being changed it called for lot 5 in block 4 in the Roxana subdivision, which would place lot 5 immediately adjoining lot 6 in block 4, described by the deed delivered to Miller. This change as to block number was made in all three copies of the contract. Miller's copy, which was pasted in a passbook, was left with Mrs. Miller, and the remaining copies returned to Davis, who retained one copy in his office and delivered one copy, as changed, to Clark, who thereupon made a record of the sale in his books as to lot 5 being located in block 4 in said subdivision. The evidence also shows that upon her son returning home shortly after James' visit Mrs. Miller notified him of the change made in the contract as just described. It would appear from the evidence that after the contract was so changed Miller, or some one for him, made payments on it to Clark at the Wood River bank from time to time, which payments were generally made through the mail, the passbook being sent with each payment and returned to Miller after the payments were credited therein; that at none of the times when such payments were made did Miller, or any one for him, notify Clark or Davis or any one at the bank that he claimed the contract to cover lot 5 in block 5 instead of lot 5 in block 4. The evidence tends to show that at the time the sale was made of the lots in the Roxana subdivision it was the purpose of Davis to sell the lots in pairs, and the evidence on the part of appellees tends strongly to show that at the time of Miller's...