Towner v. Tickner

• Decision Date: 22 January 1885
• Citation: 112 Ill. 217,1885 WL 8144
• Parties: ITHIEL C. TOWNER et al.v.ROBERT S. TICKNER et al.
• Court: Illinois Supreme Court

112 Ill. 217

1885 WL 8144 (Ill.)

ITHIEL C. TOWNER et al.

v.ROBERT S. TICKNER et al.

Supreme Court of Illinois.

Filed at Ottawa Jan. 22, 1885.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Kane county; the Hon. C. W. UPTON, Judge, presiding.

The bill in this case was brought by Robert S. Tickner and John L. Tickner, against Ithiel C. Towner and S. P. Richards, in the City Court of Elgin. Afterwards, the venue was changed to the circuit court of Kane county, where the cause was tried, and a decree rendered against defendants, to reverse which they have brought the case to this court on their appeal. The facts of the case sufficiently appear in the opinion of the court.

Mr. R. N. BOTSFORD, for the appellants:

In order to induce a court of equity to enforce the specific performance of a contract, it must be founded on a good consideration,--it must be reasonably fair and just. Sear v. Chouteau, 23 Ill. 39.

The party seeking enforcement must stand prepared to meet the scrutiny of the court, and he must show what he asks is not unjust or oppressive to the defendant. Stone v. Pratt, 25 Ill. 25. It is only on the principle that it is unjust and inequitable to permit the contract to remain unexecuted, that a court of chancery assumes jurisdiction to enforce it. Tamm v. Lavalle, 92 Ill. 263; Brix v. Ott, 101 Id. 70.

A specific performance of a contract is not decreed merely because a legal contract is shown to exist. It will not be decreed as a matter of course. Alexander v. Hoffman, 70 Ill. 114; Gosse v. Jones, 73 Id. 508.

Appellees made no effort of any kind to put themselves in a condition to perform their contract, but they now ask appellants to excuse their misrepresentation, their deception, their indifference, and inability to perform, and demand from appellants a literal compliance on their part. This conduct on the part of appellees the law will not approve. Brown v. Cannon, 5 Gilm. 174; Walker v. Douglas, 70 Ill. 445; Seymour v. Delancy, 6 Johns. Ch. 222.

A court of equity has no power to alter contracts of parties, but must enforce them as made. Kemp v. Humphreys, 13 Ill. 573; Chrisman v. Miller, 21 Id. 227; Steele v. Biggs, 22 Id. 643; Heckard v. Sayer, 34 Id. 142; Stow v. Russell, 36 Id. 19.

Mr. J. W. RANSTEAD, for the appellees:

Appellants, by informing the tenant not to give up possession of the real estate, are estopped from saying appellees could not then deliver possession. Risinger v. Cheney, 2 Gilm. 84.

Where no objection is made to a tender, but a refusal to perform the contract is placed on other grounds than a performance or ability to perform, the tender will be good. Carbus v. Lead, 69 Ill. 206; Morgan v. Herrick, 21 Id. 493; Williams v. Bank, 2 Pet. 102; Thayer v. Star Mining Co. 105 Ill. 548.

Appellants' attorney omits the qualification to the rule, that the fraud, imposition or mistake must be about something which is material, and goes to the essence of the contract. In other words, the misrepresentation or mistake must concern something constituting an inducement or motive, without which the contract would not have been made, and by which the party defending has been misled to his injury. De Wolf v. Pratt, 42 Ill. 198; Smith v. Richards, 13 Pet. 37; 1 Story's Eq. Jur. sec. 151; Waterman on Specific Per. secs. 311, 359; Fry on Specific Per. (2d ed.) sec. 457; Pomeroy's Eq. Jur. secs. 856, 860, 868; Kerr on Fraud and Mistake, 73, 74.

Compensation, not forfeiture, is the universal rule of equity, and a vendor, notwithstanding he can not convey strictly according to his contract, and it appears that the part which can not be conveyed is of small importance, or is immaterial to the enjoyment of that which may be conveyed to him, may insist on a specific performance, with compensation to the purchaser. De Wolf v. Pratt, 42 Ill. 198; King v. Bardeau, 6 Johns. Ch. 38; Davis v. Parker, 14 Allen, 94; Hepburn v. Auld, 5 Cranch, 262; Winne v. Reynolds, 6 Paige's Ch. 407; Dyer v. Hargrave, 10 Ves. 507; McQueen v. Farquhar, 11 Id. 467; Scott v. Hanson, 1 R. & M. (5 Eng. Ch.) 129; Lewin v. Guest, 1 Russ. (46 Eng. Ch.) 290; Waterman on Specific Per. secs. 499, 502, 503; Kerr on Fraud and Mistake, 361, 363.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The written contract between the parties which complainants seek to have specifically performed, is set forth in the bill, from which it appears complainants sold to defendants certain real property described definitely as being in the city of Elgin, on which there was a planing mill, and certain machinery particularly described in the agreement, and also the right to use for manufacturing purposes a certain quantity of water running in the Fox river, at and for a certain price to be paid by defendants. As part payment defendants were, by the terms of the agreement, to assume and pay a mortgage on the premises, and give their promissory note payable within five years from the date the contract was to be performed. The contract was to be performed by both parties on the first day of April, 1881. The real estate described in the contract was to be conveyed by complainants to defendants by warranty deed, in fee simple, and a bill of sale of the machinery described in the contract was to be made and delivered with the deed, and possession given. On the first day of April, 1881, complainants tendered to defendants a deed for the lot sold, and also a bill of sale for the machinery, and demanded a compliance with the contract by defendants, which they refused to do.

There is no question made as to complainants' title to the real estate and the water power mentioned in the contract, nor that complainants tendered at the appointed time a sufficient warranty deed for the property. Defendants placed their refusal to comply with the contract on other grounds, which will be presently noticed. It may be remarked the testimony concerning the matters in contention between the parties is so conflicting, it is exceedingly difficult to ascertain the exact facts. The parties to this transaction seem to be honorable people, and the conflicting statements as to the material facts may arise from honest differences.

So far as the delivery of the possession of the real property is concerned, defendants are in no position to make any just complaint. At the time the contract was made, on the 24th day of December, 1880, the mill situated on the lots was in possession of Smith Hoag. He claimed he was entitled to three months' notice to surrender the possession, which was accorded to him. Notice was, in fact, given, so that he would have to give possession on the day the parties were mutually obligated to perform the contract. The testimony is full to the point, Hoag was willing to surrender the possession at the appointed time, and no doubt would have done so had he not been assured by defendants that he need not do it on their account. On this branch of the case there is no real controversy. The matters insisted upon as an excuse for the non-performance of the contract are of no very great importance, and do not seem to affect the value of the property in any considerable degree. Complaint is made the water wheel was out of repair, or perhaps was not in as good condition as it was represented to be. The defect that was found to exist could have been made good at a trifling expense. One witness said it could be done in an hour or two, at a cost of two dollars, and another stated that it would cost fifteen dollars to make the repairs. The condition of the wheel was unknown to complainants, and had their attention been called to it the necessary repairs would no doubt have been made, so there could have been no complaint on that score.

The parties do not agree as to the movable machinery that was agreed to be sold to defendants, and that was to be embraced in the bill of sale that was...