Warren v. Richmond

• Decision Date: 30 September 1869
• Citation: 53 Ill. 52,1869 WL 5492
• Parties: HORACE WARREN et al.v.MARTHA J. RICHMOND.
• Court: Illinois Supreme Court

53 Ill. 52

1869 WL 5492 (Ill.)

HORACE WARREN et al.

v.MARTHA J. RICHMOND.

Supreme Court of Illinois.

September Term, 1869.

APPEAL from the Superior Court of Chicago; the Hon. JOHN A. JAMESON, Judge, presiding.

The opinion states the case.

Messrs. BUELL & ADAMS, for the appellants.

Messrs. BLANCHARD & MILLARD, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court: This was a bill in chancery, filed by appellee, in the Superior Court of Chicago, against appellants, for a specific performance of a contract alleged to have been made by Warren, for the conveyance of the real estate described in the bill. Warren, it appears, after he entered into the contract, conveyed the premises to Anna B. Hawks, and took a mortgage on the premises to secure the payment of a balance of the purchase money. Appellants severally answered the bill, replications were filed, and the cause was heard at the June term, 1869, of the court, when a decree was rendered, granting the relief sought by the bill, as to a portion of the premises, but the bill was dismissed as to the remainder.

Complainant insists that she is entitled to relief, under a written agreement, of the first of July, 1865, by which Warren agreed to convey forty-three feet off the west side of lot one, block three, Ellis' addition to Chicago, and she agreed to pay the sum of two hundred and eighty dollars, with interest, annually, at six per cent.; one hundred and forty dollars of that sum, with interest, payable on the first of June, 1866, and the remaining one hundred and forty dollars and interest, on the first of June, 1867, and that she would pay all taxes and assessments legally imposed. The time of payment is made essential to the agreement, and it provides for a forfeiture for non-payment at the times specified, and for a re-entry. This agreement was not recorded, and at the filing of the bill was in Warren's possession.

Two questions present themselves for determination; first, whether complainant has performed her part of the contract; or secondly, whether, if she has not, she has shown a sufficient excuse for non-performance to entitle her to the relief prayed in her bill, several years after it was entered into and after the time for carrying the contract into effect had expired. The fact that Warren is found to have possession of the agreement, is strong evidence that the contract had been abandoned and canceled by the parties. Complainant and her husband attempt to explain this by saying, that the agreement was given to Warren that he might execute a deed for the lot to complainant, but he denies this, and says that when Richmond failed to make the cash payment, he surrendered the contract and agreed to pay rent for the house.

After the sale was made, Warren gave to appellee a receipt for $150, on the purchase of the lot, and in it stated that the balance due on the lot was $280, and that one half was to be paid in one year from date and the balance in two years. This receipt bore date the eighteenth of July, 1865. Warren swears that for the payment of the $150 named in the receipt, Richmond gave him a note on Mackway to collect and retain that amount, and apply the remainder on the indebtedness; that he was unable to collect anything on the note and returned it. Richmond denies he ever had the note. And he, appellee, their daughter and Dr. Jones all swear to the payment of the money at the time the contract or the receipt was given, and they testify positively and unequivocally to its payment. The only means of reconciling the evidence in reference to the payment of the money is, that Richmond swears he frequently gave money to Warren with...