Thayer v. Meeker
| Decision Date | 30 September 1877 |
| Citation | 1877 WL 9760,86 Ill. 470 |
| Parties | H. LEROY THAYERv.ARTHUR B. MEEKER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Will County; the Hon. JOSIAH MCROBERTS, Judge, presiding.
Messrs. HAGAR & FLANDERS, for the appellant.
Early in January, 1872, Van Horn, being the owner of a tract of land near the city of Joliet in this State, contracted to sell it to Meeker for the sum of $2,000, of which $500 was paid in hand, and the balance was to be paid in one, two, and three years, in equal sums, with eight per cent interest per annum. The first of the deferred payments was promptly made at maturity. The second payment was not made on the day it fell due, but was tendered sometime after, and the last was tendered when due.
The contract for the sale was in writing, and time of payment was made of the essence of the contract. At the maturity of the second note, Meeker, who had been absent in Europe, had not returned home, and we think the evidence satisfactorily shows that Van Horn, at the solicitation of Hutchins, the agent of Meeker, extended the time for its payment, but no definite time was fixed further than until his return from Europe. On the failure to make the payment, Van Horn, without any notice to Meeker or his agent, about April 3, 1874, sold and conveyed the premises to Thayer for the unpaid balance of the purchase money, and also assigned to him the contract of sale to Meeker. On the next day the deed was recorded, and on the 11th the tender was made. Afterwards, on the 14th, Thayer served a notice on Meeker's attorney that the contract was forfeited, and indorsed the same on the contract and had the instrument recorded. Having refused both tenders and refused to convey the premises to Meeker, he brought this bill to compel a specific performance of the agreement, and made Van Horn and Thayer defendants.
On a hearing on bill, answer, replication and proofs, the court decreed that Thayer accept the money tendered him and convey the premises to Meeker; and Thayer brings the case to this court by appeal, and urges a reversal.
It is urged that the evidence fails to show that Van Horn gave any extension of time for the payment of the second note, but we are, from the evidence, satisfied he did. Hutchins, a disinterested witness, is clear and positive as to time, place, and circumstances when the agreement was made. His account is reasonable, natural, and consistent. From age or other causes Van Horn's memory seems to have become impaired. He seems not to be positive that he did not extend the time for payment, but says that he did not, so far as he knew.
But it is insisted that, even if the time was extended, there is no evidence that Hutchins was appellee's agent. Hutchins testified he was, and he is alleged to have been in the bill, and he could prove his agency as well as what he did, claiming to be such agent, and appellee by his bill undeniably adopts his acts as his agent, and that is abundantly sufficient. The cases of Maxey v. Heckethan, 44 Ill. 437, and Whiteside v. Margarel, 51 Id. 507, only hold that the mere statement made by a person claiming to be the agent of another does not prove the fact. The cases do...
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