Weiss v. Binnian

• Decision Date: 17 February 1899
• Parties: WEISS v. BINNIAN.
• Court: Illinois Supreme Court

178 Ill. 241

52 N.E. 969

WEISS

v.BINNIAN.

Supreme Court of Illinois.

Feb. 17, 1899.

Appeal from appellate court, Third district.

Assumpsit by William Weiss against William H. Binnian. From a judgment of the appellate court affirming a judgment for defendant (78 Ill. App. 292), plaintiff appeals. Affirmed.Ben Hoff, Jr., and W. R. Curran, for appellant.

Arthur Keithly, for appellee.

CRAIG, J.

This was an action of assumpsit, brought by William Weiss to the May term, 1897, of the Tazewell county circuit court, against William H. Binnian, upon a promissory note, as follows: ‘$5,000. Peoria, Ill., Jan. 16, 1893. On or before July 10, 1896, after date, I promise to pay to the order of William Weiss $5,000, at the First National Bank, Peoria, Ill., value received, with interest at the rate of six per cent. per annum from July 10, 1893. William H. Binnian. William E. Stone. The declaration contained one special count, with the common counts, and alleged damages at $7,000. To the declaration appellee filed a number of pleas, in which it was averred that the note in suit is the sole cause of action, and that it is the last to mature in a series of notes, aggregating $18,200, made by William E. Stone, as principal, and the defendant, William H. Binnian, as surety, for the purchase price of certain real estate that day bought by said Stone of plaintiff, and which plaintiff agreed to convey to Stone upon the fulfillment of certain conditions, expressed in a written contract entered into between the plaintiff and Stone contemporaneously therewith, and as part thereof. The fourth plea set out the contract in full, and it was referred to in the other pleas. The material part of the condition of said contract, necessary to be considered in this decision, is, in substance, as follows: ‘Upon the payment of said sums being made at the time and in the manner aforesaid, the said William and Eva Weiss covenant and agree to and with the said William E. Stone, his heirs, executors, administrators, and assigns, to execute a good and sufficient deed of conveyance, in fee simple, free and clear from incumbrance, with full covenants of warranty for the above-described premises.’ Subsequently, by leave of court, the above pleas were all withdrawn, and appellee filed substituted pleas 1, 2, 3, 4, 5, 6, 7, and 8. To each of these pleas appellant filed replications. Appellee then filed a general and special demurrer to appellant's replications to the third, fourth, fifth, sixth, seventh, and eighth substituted pleas. Appellant joined in demurrer. On hearing, the court sustained appellee's demurrer to appellant's replications to the third, fourth, fifth, sixth, seventh, and eighth substituted pleas, and carried the demurrer back to appellee's fourth and seventh pleas. Appellant was then granted leave to amend his replications to appellee's third, fifth, sixth, and eighth substituted pleas. Appellee abided by his seventh plea, and was granted leave to amend his fourth plea and to file additional pleas. Thereupon appellee filed an amendment to his fourth plea, and filed additional pleas Nos. 9, 10, and 11. The appellant then demurred to appellee's amended and substituted pleas 3, 4, 5, 6, 8, 9, 10, and 11. There was joinder on demurrer, and a hearing. The court overruled appellant's demurrer to the appellee's third, fifth, sixth, eighth, and tenth amended and supplemental pleas, and sustained the demurrer as to the appellee's fourth amended and ninth and eleventh additional pleas. Appellee abided by his ninth and eleventh additional pleas, and was granted leave to make a second amendment to his amended fourth plea, which second amendment was made. On motion, leave was granted the appellant to reply to the third, fourth amended, fifth, sixth, eighth, and tenth additional pleas, which replications were filed. Appellee filed a general demurrer to each of said replications. On the hearing of this general demurrer, the court overruled it as to appellant's replication to appellee's third, eighth, and tenth pleas, and sustained it as to appellant's replications to the fourth, fifth, and sixth pleas, to which ruling of the court in sustaining said general demurrer to said replications appellant excepted, and abided by his said replications to said fourth, fifth, and sixth pleas, and the court entered final judgment against appellant.

From the foregoing statement of the pleadings, it is apparent that, in order to dispose of the questions presented by the record, if will only be necessary to consider the fourth amended plea and the fifth and sixth additional pleas, and the replications filed to these pleas. The facts disclosed by these pleas constituted a complete defense to the promissory note set up in the declaration. The payment of the note sued on in the case at bar, and the conveyance of the land described in the contract by ‘a good and sufficient deed of conveyance in fee simple, free and clear from incumbrance,’ are dependent, concurrent conditions, and the plaintiff is required to be in a situation to perform his part of the contract, and to so aver in his replications, before he can force the defendant to carry out his part of the contract. Tyler v. Young, 2 Scam. 444. In Mason v. Wait, 4 Scam. 127, the case was debt on a promissory note. The declaration contained the usual money counts and an account stated. The please set up in different ways that the consideration of the note was the sale of certain lots and lands, and the delivery of a bond for a deed, and that the payee in the note could not convey title. This court said: ‘A want of title in the vendor may be set up under our statute as a want or failure of consideration of the note sued on. We do not regard the title bond in this case, or the covenant for title, as the consideration. The true consideration is the estate,’-citing Mason v. Waite, 1 Pick. 455;Dickinson v. Hall, 14 Pick. 217;Stone v. Fowle, 22 Pick. 166;Owings v. Thompson, 3 Scam. 502. A purchaser of property to be paid for in installments, where there is no time fixed for the delivery of the deed, is not entitled to receive his deed until the last payment is made; nor is a purchaser obliged to part with his money before he receives the deed. Doyle v. Teas, 4 Scam. 202;Thompson v. Shoemaker, 68 Ill. 256;Duncan v. Charles, 4 Scam. 561.As has been seen, the appellee demurred to the replications to the fourth, fifth, and sixth pleas, which the court sustained, and, the plaintiff electing to stand by his replications, the court entered judgment in bar against the plaintiff for costs of suit, because the facts set up in the pleas were a complete defense to the cause of action set up in the declaration, and remained unanswered. Appellant assigns error in entering judgment in bar against the plaintiff, and in favor of the defendant, on the pleas. In this there was no error. In Ward v. Stout, 32 Ill. 399, this court said (page 411): ‘Where the defendant's plea constitutes a bar to the action, if the plaintiff demurs to it, and the demurrer is determined in favor of the plea, judgment of nil capiat shall be entered, notwithstanding there may be also one or more issues of fact, for the reason that upon the whole it appears the plaintiff had no cause of action. Lawe v. King, 1 Saund. 80a, note 1. It is true a demurrer was not interposed to the second plea, but a defective replication was, which amounts to the same thing, and the demurrer to it tested the validity and sufficiency of the plea. The effect is the same as if an issue of fact had been made upon the plea and that issue had been found for defendant, which, if so found, necessarily put an end to the plaintiff's action. It is impossible, on this state of the pleadings, that the plaintiff could have judgment. Standing by his defective replication, the court was bound to give judgment in chief. One party cannot have a judgment upon the law and the other party upon the facts of the case.’

It is, however, said that the facts set up in the replications constituted a complete answer to the pleas, and the court erred in sustaining a demurrer thereto. The premises described in the bond for deed or written contract, which the pleas aver the plaintiff, Weiss, could not convey free from incumbrance, are lots 3, 4, and 5, a part of lot 6,...