Schmalzer v. Jamnik

• Decision Date: 27 November 1950
• Docket Number: No. 31549,31549
• Parties: SCHMALZER v. JAMNIK et al.
• Court: Illinois Supreme Court

Page 347

95 N.E.2d 347

407 Ill. 236

SCHMALZER v. JAMNIK et al.

No. 31549.

Supreme Court of Illinois.

Nov. 27, 1950.

Brown, Stackler & Levenfield, of Chicago, for appellant.

Stiefel, Greenberg & Burns, of Chicago, for appellee.

FULTON, Justice.

This is an appeal from a decree of the circuit court of Cook County, reforming a contract to purchase real estate, on the recommendations of a master in chancery, between Anton Jamnik, the defendant-appellant, and L. D. Schmalzer, plaintiff-appellee. The decree further provided that the plaintiff have a credit on the contract of purchase in the amount of $9683 and a further credit equal to the difference between certain rents collected between July 1, 1946, to and including December 1, 1949, less all disbursements.

It appears from the record that the appellant and the appellee entered into a contract whereby the appellant agreed to sell, and appellee agreed to purchase, property known as 1638-44 West Seventy-ninth Street in Chicago, for $105,000, subject to a mortgage of $38,000, taxes, special assessments, and existing leases with specified rentals for stores on the property.

The complaint charged that subsequent to the above agreement and the payment of $5,000 earnest money in April, 1946, the Cross Town Liquor Mart, Inc., which was made a party defendant to the cause in the lower court and whose lease expired in 1946, and the appellant, entered into a new lease dated back to November 1, 1945, for an additional five years at a lower rental, when the premises were properly worth a higher rental.

The written contract between the parties, reads as follows:

'This Memorandum Witnesseth, That L. D. Schmalzer hereby agrees to purchase at the price of One Hundred Five Thousand and no/100 ($105,000.00) Dollars, the following described real estate, situated in the County of Cook and State of Illinois:

The 3 story brick building consisting of 20 apartments and 4 stores commonly known as 1638-44 West 79th Street, together with all appurtenances attached to the property including 20 electric refrigerators and 20 gas stoves and stoker.

Right to insert legal description later.

Section Township North, Range East of the Third Principal Meridian, and

Anton Jamnik

agree to sell said premises at said price, and to convey to said purchaser a good and merchantable title thereto, by stamped general Warranty Deed, with release of dower and Homestead rights, but subject to: (1) existing leases, expiring 3 stores @ $337.50 per mo., exp. 10/31/46; 1 store $115.00 per mo. 10/31/49 total rentals $15,090.00 per yr., the purchaser to be entitled to the rents from date of closing deal; (2) all taxes and assessments levied after the year 1945; not yet completed and to unpaid installments of special assessments which fall due after date of closing deal levied for improvements completed; also subject to any party wall agreements of record; to building line restrictions and building restrictions of record, and to prorate general taxes, water taxes, rents, insurance, coal, janitor salary and electric bill, also interest on 1st mortgage as of date of closing deal. Property is also subject to 1st mortgage with an unpaid balance of $38,000 payable in monthly installments which include interest at 4 1/2%; payments amount to $325.13 per month, plus taxes.'

In accord with the findings of the master, the court ordered the above contract of sale, dated April 4, 1946, to be corrected and reformed to supply the legal description of the real estate as follows:

'Lots 3, 4, 5 and 6 in the re-subdivision of Lots 1 to 49 in Block Sixty-three (63) in Dewey and Vance Subdivision in the South one-half (1/2), Section Thirty (30), Township Thirty-eight (38) North, Range Fourteen (14), East of the Third Principal Meridian in Cook County, Illinois. Improved with a 3 story brick building consisting of 20 apartments and 4 stores commonly known as 1638-44 West 79th Street, together with all appurtenances attached to the property, including 20 electric refrigerators and 20 gas stoves and stoker.'

The decree further ordered specific performance of the contracts, except that the title should be conveyed subject to the terms and provisions of the lease between the appellant and the defendant Cross Town Liquor Mart, for a term commencing on November 1, 1946, and expiring October 31, 1951, and, because of the depreciation in value by reason of the lease, the plaintiff should have a credit on the purchase price in the amount of $9683. The court also found that a further credit should be given on the purchase price in the amount of the difference between the rent collected on the premises for the period fom July 1, 1946, to December 31, 1946, less all proper disbursement made by appellant in the operation and management of the premises during such period, and all general real-estate taxes and payments of principal and interest on the mortgage paid by the appellant herein on account of the indebtedness of the first mortgage.

The appellant contends that the trial court erred in entering a decree for the specific performance of the contract because the description of the property in said contract was by street address, only, without any city or State being named and without any legal description being incorporated, and that such a defect cannot be cured by parol evidence. Further, the appellant contends that, in order to have specific performance, the appellee must allege and prove complete performance on his part of the obligations imposed upon him by the contract, and that in its case there was no tender of the purchase price until the time of the hearing. The last contention of the appellant is that there was no evidence in the record upon which to base a finding of fraud sufficient to allow the credits given for the new lease to the defendant liquor store.

The appellee argues, on the other hand, that the contract by its very terms provided for the insertion of the legal description and the appellant cannot now take the position that the omission of a legal description rendered the contract void and that, even were such an argument proper, the defendants, by their sworn pleadings, admitted the identity of the property owned and leased by them, respectively, as being the property covered by the contract, whereby appellee was entitled to have the contract reformed to include a metes and bounds description. Appellee further contends that there was fraud on the part of the appellant herein, which excused the appellee from making tender otherwise than during the proceeding and that, irrespective of the fraud of the appellant, the appellee was not required to tender the balance of the price until the appellant furnished the appellee with proof of title as provided for in the contract of sale. He further argues that there is sufficient evidence in the cause to justify the findings of the master and the decree of court and that this court should not disburb said findings unless they are manifestly against the weight of the evidence.

In support of his first contention, appellant cites the case of Heroux v. Romanowski, 336 Ill. 297, 168 N.E. 305. In that case the complaint sought specific performance of a contract which stated that the seller agreed to sell and the buyer agreed to buy 'the following decribed real estate, situated in the county of Cook and State of Illinois, to-wit: Six 3-room flats...