Phelps v. Ill. Cent. R.R. Co.
| Decision Date | 30 June 1872 |
| Citation | 1872 WL 8217,63 Ill. 468 |
| Parties | SILAS M. PHELPSv.ILLINOIS CENTRAL RAILROAD COMPANY et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding.
Mr. W. W. WILLARD, and Mr. H. C. GOODNOW, for the appellant.
Mr. GEO. W. HALL, for the appellees.
The only question of any real importance in this case is, the right of appellant to a specific performance of the contract, made by him with the railroad company, for the purchase of this tract of land.
It has been repeatedly held by this court that a party can not call, as of right, upon a court of equity to exercise this branch of its jurisdiction; that its exercise rests in the sound discretion of the court, in view of the terms of the contract of the parties, and surrounding circumstances. A party demanding its exercise, is bound to show he himself has always been ready, willing and eager to perform on his part, when the contract itself does not make time of the essence of the contract. In cases where time is of the essence, it has been the constant ruling of this court that such a provision can not be dispensed with, but will be enforced, except under very peculiar circumstances. A court of equity has no power to alter contracts of parties, but to enforce them as made. Kemp v. Humphreys, 13 Ill. 573; Chrisman v. Miller, 21 ib. 227; Wynkoop v. Cowing, ib. 570; Steele v. Biggs, 22 ib. 673; Heckard v. Sayre, 34 ib. 142; Stow v. Russell, 36 ib. 18.
That time was of the essence of this contract is not denied by appellant.
The contract provides, “in case the second party (appellant) shall fail to make the payments aforesaid, and each of them, punctually and upon the strict terms and times above limited, and likewise to perform and complete all of his agreements and stipulations, aforesaid, strictly and literally, without any failure or default, then this contract, so far as it may bind said first party, (railroad company,) shall become utterly null and void, and all rights and interests hereby created, or then existing, in favor of said second party, or derived from him, shall utterly cease and determine, and the premises hereby contracted shall revert to and revest in said first party, without any declaration of forfeiture or act of re-entry, or without any other act by said first party to be performed, and without any right of said second party of reclamation or compensation for money paid or service performed, as absolutely, fully and perfectly as if this contract...
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