Neidhardt v. Frank

• Decision Date: 09 June 1927
• Docket Number: No. 17953.,17953.
• Citation: 156 N.E. 769,325 Ill. 596
• Parties: NEIDHARDT v. FRANK.
• Court: Illinois Supreme Court

325 Ill. 596

156 N.E. 769

NEIDHARDT

v.FRANK.

No. 17953.

Supreme Court of Illinois.

April 20, 1927.

Rehearing Denied June 9, 1927.

Error to Superior Court, Cook County; Denis E. Sullivan, Judge.

Suit by William Neidhardt against Fannie Frank for specific performance. Decree for complainant, and defendant brings error.

Affirmed.Aaron R. Eppstein and Ferdinand J. Karesek, both of Chicago, for plaintiff in error.

Oscar Thonander, of Chicago (Walter H. Shurtleff, of Chicago, of counsel), for defendant in error.

HEARD, J.

January 27, 1922, defendant in error, hereinafter called complaintiff, filed his bill in chancery in the superior court of Cook county against plaintiff in error, hereinafter called defendant, praying for the specific performance of a contract for the purchase and sale of real estate. Defendant filed an answer to the bill, and, issue being joined, the cause was referred to a master in chancery to take proofs and report the same together with his findings. Thereafter the master in chancery filed his report, recommending that the bill be dismissed for want of equity. Exceptions of complainant to the master's report were sustained by the chancellor, and specific performance of the contract was decreed, with other relief. Defendant has sued out a writ of error from this court to review the record.

On March 12, 1921, complainant and defendant entered into a written contract, by the terms of which complainant agreed to purchase, and defendant agreed to sell, for $6,800, the premises in question, subject to a trust deed for $2,500 and existing leases, and subject to taxes and other matters not in issue in this proceeding. The contract recited that the purchaser had paid $250 as earnest money, to be applied on the purchase when consummated, and that the purchaser agreed to pay, within five days after the title had been examined and found good or accepted by him, the insurance premiums, and the further sum of $4,050, provided a good and sufficient general warranty deed conveying to the purchaser a good and merchantable title, subject as aforesaid, should then be ready for delivery. The contract also contained the following provisions:

‘Seller may find it necessary to file a bill in court to correct an error as to date of expiration of lease on store of said premises, and said seller may postpone the closing of said deal for such reasonable time as may find necessary in order to correct said date by decree of court or otherwise, and the abstract of title or guaranty policy is to be delivered for examination as soon as said date of lease is corrected. * * *

‘A certificate of title issued by the registrar of titles of Cook county, or complete merchantable abstract of title or merchantable copy brought down to date hereof, or merchantable title guaranty policy made by C. T. & T. Co., shall be furnished by the vendor within a reasonable time, which abstract shall upon the consummation of this sale remain with the vendor or his assigns as part of his security, until the deferred installments are fully paid. The purchaser or his attorney, if an abstract or copy be furnished, shall, within ten days after receiving such abstract, deliver to the vendor or his agent (together with the abstract) a note or memorandum in writing, signed by him, or his attorney, specifying in detail the objections he makes to the title, if any, or, if none, then stating in substance that the same is satisfactory. In case material defects be found in said title and so reported, then, if such defects be not cured within sixty days after such notice thereof, this contract shall, at the purchaser's option, become absolutely null and void, and said earnest money shall be returned, notice of such election to be given to the vendor; but the purchaser may nevertheless elect to take such title as it then is, and in such case the vendor shall convey as above agreed: Provided, however, that such purchaser shall have first given a written notice of such election within ten days after the expiration of the said sixty days and tendered performance hereof on his part. In default of such notice of election to perform, and accompanying tender, within the time so limited, the purchaser shall, without further action by either party, be deemed to have abandoned his claim upon said premises, and thereupon this contract shall cease to have any force or effect as against said premises or the title thereto, or any right or interest therein, but not otherwise.

‘Should said purchaser fail to perform this contract promptly on his part at the time and in the manner herein specified, the earnest money paid as above shall, at the option of the vendor, be retained by the vendor as liquidated damages, and this contract shall thereupon become and be null and void. Time is the essence of this contract and of all the conditions hereof.

‘The notices required to be given by the terms of this agreement shall in all cases be construed to mean notices in writing, signed by or on behalf of the party giving the same, and the same may be served either upon the other party or his agent.’

No certificate of title, abstract of title, or guaranty policy was ever delivered by defendant to complainant nor to any one for him. Neither did defendant correct the error as to the date of the expiration of the lease mentioned in the contract, by filing her bill in equity to correct the same or otherwise. The master in chancery found that the real estate broker who negotiated the sale of the premises demanded an abstract from defendant for the purpose of bringing down the title, but defendant refused to deliver the abstract, and that defendant notified the broker that she would not carry out the contract. The decree finds that complainant demanded from defend...