Winkelman v. Erwin

• Decision Date: 20 February 1929
• Docket Number: No. 19162.,19162.
• Parties: WINKELMAN et ux. v. ERWIN et ux.
• Court: Illinois Supreme Court

333 Ill. 636

165 N.E. 205

WINKELMAN et ux.

v.ERWIN et ux.

No. 19162.

Supreme Court of Illinois.

Feb. 20, 1929.

Action by Louis Winkelman and wife against H. G. Erwin and wife. Decree for plaintiffs, and defendants appeal.

Affirmed.Appeal from Circuit Court, White County; Charles H. Miller, judge.

Endicott & Endicott, of Carmi, for appellants.

Rumsey & Ronalds, of Harrisburg, and Conger & Elliott, of Carmi, for appellees.

JUNN, J.

The circuit court of White county rendered a decree annulling a contract between Louis Winkelman and Mittie Winkelman, his wife, complainants, and H. G. Erwin and Anabel Erwin, his wife, defendants, for the purchase by the complainants of the defendants of 40 acres of land and the deed executed in pursuance of the contract and requiring the return of the consideration paid. The defendants have appealed.

The appellants owned the northwest quarter of the southeast quarter of section 26, in town 6 south, range 8 east of the third principal meridian, in White county, and employed Mrs. Rose Ann Thompson, a real estate agent residing at Harrisburg, in Saline county, to sell it. The appellants and the appellees were not acquainted, and never saw one another until after the delivery of the deed in performance of the contract. Winkelman, who was a coal miner living at Harrisburg, saw in a newspaper an advertisement of the land for sale, giving only a number for an address. He answered the advertisement, and thus met Mrs. Thompson, with whom, on May 3, 1927, he and his wife went to White county to look at the land. Mrs. Thompson had never seen the land, and stopped on the way to inquire the road to it. When they reached it, the house was closed, and no one was there. Mrs. Thompson then went to inquire of Oris Hill, a neighbor, where the lines were and where the keys were. Hill gave her the information about the lines. She asked about the north line, and he told her as near as he could. It was in sight, and he pointed it out to her. She came back to the Winkelmans and told them, as she said, what Hill had told her about the line, and pointed out the line that had been pointed out to her by Hill. She testified that she did not knowingly misrepresent anything. Winkelman and his wife testified that Mrs. Thompson showed them the north line of the tract, which included in the land they were buying a tract of about 12 acres of bottom land, upon which were a well and a tree, and there was evidence that these 12 acres were worth twice as much as any other land in the 40-acre tract. The appellees made no inquiry of any other person as to the boundaries of the land they were buying. On the way back to Harrisburg the terms of a contract for the purchase of the land were agreed on, and on the same day, at Harrisburg, the contract was reduced to writing, the price agreed on being $3,000-$1,450 cash and $1,550 to be secured by a mortgage. The contract was executed by the appellees in person and by the appellant H. G. Erwin by Mrs. Thompson, his agent. Winkelman paid $1,450 to Mrs. Thompson, and the next day, May 4, the appellants executed their warranty deed of the 40 acres to the appellees. This deed was delivered on May 6, and at the same time the appellees executed and delivered to Mrs. Thompson, as agent for the appellants, a mortgage of the same 40 acres to secure the payment of the remainder of the purchase money. After the delivery of the deed and the mortgage, Winkelman told Mrs. Thompson that there was a mistake in them, and she promised to get Erwin and have it straightened out. Erwin came on Sunday, and Erwin and Winkelman agreed to meet Monday morning for the purpose of correcting the mistake. They went to the land, and Erwin showed him the orchard and pointed out the lines. When he pointed out the true line, Winkelman said that that changed things; that there was a worse mistake than ever; that Mrs. Thompson told him that the 12 acres were a part of the farm. Erwin said that was between him and Mrs. Thompson; that he had hired her to look after this for him. This was on May 9. The appellees thereupon tendered a reconveyance of the land conveyed to them, and demanded the release of the mortgage and the return of the cash payment. The appellants having refused the tender, the appellees filed their bill for a rescission of the contract and the setting aside of the deed.

[1][2] The appellants argue two points which their counsel say are the real questions at issue: (1) That the evidence must be clear and satisfactory to justify the setting aside of an executed contract; (2) that the contract will not be set aside for a mistake of fact which was due to the negligence of the complainant or could have been prevented by the exercise of reasonable diligence and care by him.

[3] These propositions are correct statements of the law. The case is not one of fraudulent misrepresentation, but is an action to rescind a contract entered into under a mistake of fact by one of the parties. A court of equity may rescind a contract at the request of one party who has entered into it, without negligence, through a material mistake of fact, when it can do so without injustice to the other party. Steinmeyer v. Schroeppel, 226 Ill. 9, 80 N. E. 564,10 L. R. A. (N. S.) 114, 117 Am. St. Rep. 224;Morgan v. Owens, 228 Ill. 598, 81 N. E. 1135;Bivins v. Kerr, 268 Ill. 164, 108 N. E. 996; 2 Pomeroy's Eq. Jur. (3d Ed.) § 870; 1 Story's Eq. Jur. (12th Ed.) 135. The fact concerning which the mistake was made must be material to the transaction and affect its substance, and must not result from the want of such care and diligence as are exercised by persons of reasonable prudence under the same circumstances. Steinmeyer v. Schroeppel, supra. While reasonable diligence is required of all parties in the transaction of business, it is not enough to prevent relief that the complainant might have ascertained the truth had he done...