Stow v. Russell

• Decision Date: 30 April 1864
• Citation: 36 Ill. 18,1864 WL 3095
• Parties: WILLIAM H. STOWv.FRANCES ANN RUSSELL et al.
• Court: Illinois Supreme Court

36 Ill. 18

1864 WL 3095 (Ill.)

WILLIAM H. STOW

v.FRANCES ANN RUSSELL et al.

Supreme Court of Illinois.

April Term, 1864.

ERROR to Circuit Court of Cook County.

The case is sufficiently stated in the opinion of the court.

Arthur W. Windett, for plaintiff in error.

Scammon, McCagg & Fuller, for defendants in error.

BREESE, J.

Samuel Russell, of Middletown, Connecticut, being the owner of lot nine, in block twenty-eight, in the orginal town of Chicago, “sometime in 1846 or 1847” made a contract in writing with the plaintiff Stow, by which he agreed to sell to him this lot, for the sum of “six or seven thousand dollars.” Of this sum one thousand dollars was paid down, and the balance was to be paid in equal annual installments, with interest at six per cent.

On the execution of the contract, the plaintiff took possession of the lot, and made valuable improvements on it at a cost of several thousand dollars, and for many years carried on a foundry on the lot, with the consent and approbation of Russell and his agents. The installments due in 1847 and 1848 were paid by plaintiff, and about one-half the installments due in 1849; the balance for that year, and the installments for 1850 and 1851, were not paid.

In the summer of 1852, Russell pressed for payment, threatening a suit, or proceedings to terminate the contract. The payments were not met, whereupon, it is alleged, the time of payment was extended by Russell, on the terms that plaintiff should pay Ogden and Jones, the agents of Russel, one thousand dollars in hand, and that thereupon they should ascertain and make a statement to complainant of the amount of payment made, and of what remained to be paid, under the contract, both principal and interest, if any; that upon the amount so ascertained, plaintiff should pay interest at ten per cent. until it should be paid; that plaintiff might begin four months thereafter, by paying two hundred dollars of the unpaid balance, and so on, two hundred dollars a month, until all should be paid. The agreement actually made and concluded by the parties, signed and sealed by them, bears date August 2, 1852, and purports to be made at the request of the plaintiff. It shows, in consideration of the money to be paid and the covenants expressed in it, to be performed by the plaintiff, the prompt performance of which payments and covenants being a condition precedent, and time being of the essence of the condition, that Russell agreed to sell to the plainttiff lot nine, in block twenty-eight, and in consideration of the premises, the plaintiff agreed to pay the party of the first part, at the office of Ogden, Jones & Co., in Chicago, the sum of seven thousand two hundred and seventy-seven dollars and fifty cents, in certain monthly installments of two hundred dollars each, and seventy-seven and fifty one-hundredths dollars on the first day of December, 1855, the term of credit being about three years and four months.

Russell covenanted, that upon the faithful performance, by the plaintiff, of his undertakings, and of the payment of principal and interest of the sum stipulated, in the manner specified, he would, without delay, execute, acknowledge and deliver, in person, or by attorney, duly authorized, to the plaintiff in error, his heirs or assigns, a deed of conveyance, etc. And it was mutually covenanted and agreed, that in case default should be made in any of the payments of principal or interest, at the time or any of the times specified for the payment thereof, and for sixty days thereafter, the agreement, and all its provisions, should be null and void, and no longer binding, at the option of the party of the first part, his representatives or assigns, and all the payments which should have been made, absolutely and forever forfeited to the party of the first; or, at the election of that party, his representatives and assigns, the covenants and liability of the plaintiff in error should remain obligatory upon him, and might be enforced, and the consideration money collected, etc.

It was further agreed, if Russell elected, in default of payments, to declare the contract at an end, and prior payments forfeited, the plaintiff, if in possession, was to be held and deemed the tenant at will of the party of the first part, at a rent equal to an interest of ten per cent. per annum on the whole amount of the purchase money. It was further stipulated, if there was a default in any payments for fifteen days after the same were due and payable, then the whole purchase money became due and payable.

On this agreement, the plaintiff made the first payment, falling due December 4, 1852, of two hundred dollars, and also other payments some time after they had become due, extending up to September, 1854, since which time no payments appear to have been made.

On the twenty-fifth of March, 1856, the plaintiff was notified in writing, by the agents of Russell, that in consequence of his defaults in his several payments and for sixty days after they were due, and in default of payment of the whole sum due, which became due and payable by the default in the payment of the several installments, and for fifteen days after they were due and payable, Russell had elected to forfeit the contract, and the payments made on it, and to declare the contract null and void, and he did thereby declare the contract, and the payments made on it, forfeited, and the contract null and void.

Soon after this notice, in the same year, Russell brought his action of ejectment in the circuit court of the United States, against the plaintiff, to recover the possession of the premises, and a verdict and judgment was rendered in favor of Russell; and in July, 1861, after five years litigation, he was put in possession of the premises by the marshal, and now holds them.

In December, 1862, the plaintiff filed his bill in the circuit court of Cook county, setting out these facts, and states as the reason why he did not make the payments, due on the original contract for the years 1849, 1850 and 1851, that he “had become involved, through making large improvements upon his property, on the opposite corner to the lot in question, and in consequence of losses in business, and failure to receive payments due, on which he had depended.”

He also alleges, as to the agreement of August 2, 1852, that Russell's agents caused him to believe that it was, in all respects, fair and correct, and for fear of losing the benefit of his purchase and the payments already made thereon, “under the pressure of his embarrassed circumstances at the time,” he was “induced and prevailed upon by the statements and assurances of Russell's agents, to leave with them the original agreement of 1846, and to sign and receive the agreement of August 2, 1852.” The bill also states, when he expressed surprise at the magnitude of the amount due--$7,279.50--on the assurance of the agents that they had allowed him all credits and payments, and had carefully computed the interest, and that the sum specified was the exact and true sum which would have to be paid on the original contract as modified and extended, and on the assurance, if there was any error, it should be rectified when discovered, and plaintiff in no way prejudiced, he accepted and executed the agreement; and that, on complaining afterwards to the agents and to Russell, of errors in the amount, they agreed and promised, on a final settlement, to make all proper corrections, credits, allowances and abatements. The bill also then goes on to allege, that in good faith, with the purpose and desire of completing the contract, he paid the first ““extended” payment of $200, December 4, 1852, and subsequently, at divers times, in separate sums of $200 each, up to and including June 11, 1853, one thousand dollars, and other payments up to September, 1854, as before stated.

In accounting for the delays in making regular payments, the plaintiff refers to unlooked for disappointment in receiving payment of his rents and moneys due him in his business, on which he had depended, and to the known liberality of the agents in giving extensions of time, and “showing indulgence to purchasers who might require it--that it was not their practice to take advantage of accidental delays in order to declare a forfeiture, when such delays were not unreasonable or perversely incurred,” etc.; and in further explanation of the delay, and as ground of relief, he states that in April, 1854, he “lost by fire his extensive buildings,” and his income from the rents thereof, about three thousand dollars a year, on which he had relied when making his arrangements for the completion of the contract and purchase.

The bill further states, that during the temporary absence of plaintiff, his wife, about the 18th of January, 1855, tendered to the agents of Russell four hundred dollars on account, which they refused to receive, they then declaring that they would not receive any further partial payments on the contract, and notified her that they claimed the whole unpaid balance of the purchase money to be then and at once due, and demanded payment thereof immediately, which was wholly unexpected and a surprise to the plaintiff.

The bill then states, that in consequence of this refusal to receive any more partial payments, plaintiff forbore, and was prevented from making any further payments thereon, until December 1, 1855, when the last payment of seventy-nine and fifty one-hundredths dollars became due, and on that day plaintiff tendered and offered to pay the agents of Russell, at their office during the usual hours of business, the sum of three thousand nine hundred and fifty-one and thirty-five one-hundredths dollars, in full payment of all moneys due and then remaining unpaid in gold coin of the United States, and produced and exhibited it, and demanded a deed, which they refused to accept. And the plaintiff further alleges, that at the same time and place ...