Race v. Charles W. Weston.

• Decision Date: 30 September 1877
• Citation: 86 Ill. 91,1877 WL 9669
• Parties: ALBERT S. RACEv.CHARLES W. WESTON.
• Court: Illinois Supreme Court

86 Ill. 91

1877 WL 9669 (Ill.)

ALBERT S. RACE

v.CHARLES W. WESTON.

Supreme Court of Illinois.

September Term, 1877.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook County; the Hon. S. M. MOORE, Judge, presiding.

Messrs. TULEY, STILES & LEWIS, for the appellant.

Mr. E. G. ASAY, for the appellee.

Mr. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the Court:

The alleged contract, of which specific performance is here sought, is one whereby appellee was to convey certain lots in the city and suburbs of Chicago to appellant, in consideration that appellant conveyed to him a leasehold estate of twenty-five years' duration in a certain lot or sub-lot in the same city, with a four-story building thereon.

The contract on the part of appellant was, as were all preliminary negotiations in reference thereto, made by one Richard T. Race, his brother, acting as his agent.

Appellee denies that any contract in regard to the conveyance of the property was finally consummated. He admits the signing of an agreement by himself to that effect, but claims that he did so with the express understanding that it was not to be delivered to appellant or recorded, and was to be returned to him and canceled, unless, after making investigation in regard to the property to be conveyed by appellant, he should become satisfied of the truth of representations respecting it made by the agent, and be satisfied to take it; and that, on making such investigation, he became satisfied that the agent's representations were false, and he determined not to take the property.

That parol evidence of the circumstances connected with the transaction, and the declared intention of the parties in executing the writing, is admissible for the purpose of showing fraud, accident, or mistake, is as well established as any other principle governing courts of equity in such cases. And it is obvious, if the writing was executed as claimed by appellee, it was a fraud upon him to deliver it and have it placed on record. Appellee and his attorney, Noyes, both testify that the writing was executed as he claims, and for no other purpose. Their evidence is clear and positive on this point. They are contradicted, however, by Richard T. Race, the agent, and by another witness. Without going into an analysis of the testimony on this point, it is sufficient to say we do not think appellee's version of the transaction clearly disproved. Richard T. Race, while not a party, is manifestly in a position to be affected by his passions quite as much as if he were a party; and the witness by whom he is corroborated, though professedly disinterested, does not, by the manner of his answers, leave us without misgivings as to his correctness.

The rule is, if it be doubtful whether an agreement has been concluded, or is a mere negotiation, a court of equity will not decree a specific performance; and especially is this so where, as here, the party attempting to enforce the contract has neither been let into possession nor done any act upon the faith of the contract. Huddleston v. Briscoe, 11 Ves. 583; Carr v. Duvall, 14 Pet. 83. Upon this point alone, therefore, we are of opinion the court below was justified in refusing the relief prayed.

But appellee claims that Richard T. Race, before the signing of the agreement, represented that the building was eighty-four feet in length and twenty-four and one-half feet in width; that it cost in its erection $25,000, and that appellant paid $30,000 for the leasehold interest; that he had no knowledge of the facts, and trusted and implicitly relied upon these and other representations made by Richard T. Race in the negotiation; that he signed the agreement believing them to be true, and would not have signed it if he had known they were false. That they were false is not controverted. The building is only seventy feet in length and twenty-three feet in width. It cost only between $16,500 and $17,000, and appellant, instead of paying $30,000 for the leasehold interest, received it in exchange for other property. Appellee and Noyes both testify that these statements of Richard T. Race were not made as mere matters of opinion or hearsay, but...