Scofield v. Tompkins
| Decision Date | 18 May 1880 |
| Citation | 95 Ill. 190,1880 WL 10025,35 Am.Rep. 160 |
| Parties | BRYANT T. SCOFIELDv.AMOS W. TOMPKINS et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county. This was an action of covenant, on articles of agreement for the sale of and payment for a tract of land in Cook county, in this State. Defendants demurred to the declaration and the demurrer was sustained by the court, and plaintiff failing to plead, judgment was rendered against him in bar of the action. He prosecutes an appeal and questions the decision of the court below in sustaining the demurrer.
The articles of agreement recite that plaintiff, in consideration of one dollar paid, and the covenants and agreement of the defendants, had sold to them several blocks of ground, supposed to contain 22 27/100 acres, and on their performing their covenants was to convey to them.
The defendants, on their part, covenanted, in consideration of the sale, to pay plaintiff $22,770 within one year from the 26th day of June, 1869, and to pay the taxes on the land for that year. They covenanted that payment should be and was a condition precedent, and time of payment was of the essence of the contract, and if they should make default in payment of the money, or any part of it, when due under the contract, plaintiff, at his option, at any time after default, might declare the contract null and void, and might retain any sums of money which might be paid, and “may sue and recover from said parties of the second part the whole or any part of said sum of money that may be due and unpaid, as liquidated damages.” Plaintiff was to retain possession and have the rents and profits until the purchase money should be paid.
The declaration avers that defendants made default in paying the money, or any part of it; but a further covenant was entered into by the parties, by which the time for payment was extended till the 28th day of September, 1870, defendants to pay ten per cent interest on the full amount of the purchase money, but it was also covenanted that this latter agreement was in nowise to alter, change or modify any of the covenants of the first agreement, except as to the time of payment, and that at the end of the extended time the defendants were still in default; that plaintiff tendered a deed to defendants for the conveyance of the land, duly executed and acknowledged, and demanded payment of the purchase money, but it was not paid.
The declaration further avers that plaintiff served defendants with a written notice that if the purchase money was not paid by the 25th day of October, 1870, the contract would be declared forfeited, and that plaintiff would proceed to collect the amount remaining unpaid as liquidated damages; that the money, or any part thereof, was not paid, and the contract was declared forfeited.
Mr. C. M. HARRIS, for the appellant:
The demurrer should not have been sustained, because, as appears from the declaration, the plaintiff should recover as liquidated damages the amount therein claimed as such. Smith v. Whittaker, 23 Ill. 367; Stephens v. Coffeen, 39 Id. 148; Bouv. Law Dict. vol. 2, p. 86; Knapp v. Mattly, 13 Weed, 587; Bagby v. Peddie, 16 N. Y. 469; Catheal v. Talmage, 9 Id. 551; Leland v. Stone, 10 Mass. 462; Chadwick v. Marsh, 1 Zabr. 463; Sedg. on Damages, 405 note, 408, etc., 421 and note, 411; Reilly v. Jones, 1 Bing. 302; Slosson v. Beadle, 7 Johns. 72; Hasbrouck v. Tappan, 15 Johns. 200.
The question presented by this demurrer is whether the $22,770 named in the agreement as the price of the land, and also as liquidated damages in case that sum was not promptly paid, may be recovered, or only such damages as can be shown to have been actually sustained by breach of the agreement.
Appellant has the land, and by this action seeks to recover its full price and also retain the land. It is manifest that his actual loss can not be equal to the value of the land. If it was worth nothing, then appellees agreed to pay this large sum for what was of no value. If it was worth that sum, then appellant has land of that value, unless its market price has depreciated. And if depreciated, then his loss is only commensurate with the depreciation. It is, therefore, clear that his loss is not equal to the sum named as liquidated damages.
The fact that the parties fix a sum...
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