text:
    The Pennsylvania Company v. George M. Sloan.

      Filed at Ottawa May 9, 1888.

    1. Parties—where one is sued by a wrong name—how availed of. Where the real party in interest, and the one intended to be sued, is actually served with process in the cause, even though under a wrong name, he must take advantage of the misnomer by plea in abatement in such suit. If he does not, he will be concluded by the judgment or decree rendered, the same as if sued in his true name.
    2. Same—identity of a party sued by a wrong name—as a question of fact. Where a railway company of a certain name is sued, and after the period of limitation has expired an amendment is allowed substituting a different name as being that of the defendant, and in the latter name the Statute of Limitations is pleaded, and the plaintiff replies that the'suit was in fact originally brought against the defendant by a wrong name, the issue thus presented is one of fact, only.
    3. Same—evidence to show identity of party sued by wrong name. To show that the defendant railway company was the same company as originally sued, though by a different name, the plaintiff proved that the company whose name first appeared in the summons had ceased to exist, except for closing up its business, long before the alleged cause of action arose, and that its road had passed from it by sale under a decree of foreclosure, and that the defendant company, at the time of the alleged injury sued for, was the lessee of the railway, and alone operating the same, but doing business in the name of the original company, and was using the signs of the old company, and using cars marked with its initials; that the original summons was in fact served on the agent of the new company, and that its attorneys appeared and defended the action without pleading the misnomer of defendant as originally sued, and that it employed the servants whose negligence caused the injury complained of: Held, that such evidence was competent, as tending to prove the issue whether the suit, when brought, was in fact against the new company by the name of the original company.
    4. Negligence—what constitutes—improper signaling by flagman at railway crossing. If a flagman of a railway company signals to a person with a horse and buggy to cross over a street crossing at a time when a train, unseen by the person in the buggy, but which the flagman was bound to observe, is moving near and directly toward the team, this will be negligence on the part of the flagman, such as will render the company liable for an injury caused thereby.

      5. Same—lease of a railroad—liability of both the lessor and the lessee. While the company owning a railway, its engines, cars and equipments, may be liable to a party injured through the negligence of the servants of its lessee operating the same, the lessee company is also liable.
    6. Same—of an instruction—whether using inaccurate expressions in imputing negligence. In an action against a railway company to recover for a personal injury charged to have resulted from the carelessness and negligence of its flagman at a street crossing in signaling the plaintiff to cross its track at a time of danger and peril, the use of the words in an instruction, that if the jury believe, from the evidence, that defendant’s flagman “improperly and inopportunely” signaled the plaintiff's team, etc., instead of using the words “ carelessly and negligently, ” was urged as error: Held, that while the use of the latter words would have been technically more correct, yet the use of the former words was not sufficiently inaccurate to mislead the jury, those words imputing negligence under the circumstances of the case.
    7. Limitation—where several causes of action are declared on. Where separate causes of action are set up in different counts, and the defendant pleads the Statute of Limitations to the whole declaration, the plaintiff will be entitled to recover if any one of his causes of action is not within the bar.
    8. Same—of the pleadings, in case of an amendment claimed as introducing a new cause of action. In 1874 the plaintiff sued a railway company to recover for a personal injury, on the ground of negligence in the engineer in backing his locomotive and needlessly blowing the whistle, and thereby frightening plaintiff's horse and making it unmanageable. In 1877 the declaration was amended, adding as a ground of negligence the improper signaling of the flagman for the plaintiff to cross the tracks. It was contended that the last named cause of action was within the Statute of Limitations of two years. The evidence tended to establish both grounds of negligence: Held, that in order to raise the question whether the amendment introduced a new cause of action, there being only one injury claimed, the defendant should have pleaded the statute separately to that part of the declaration having reference to the improper signaling by the flagman.
    9. INSTRUCTION—whether properly limiting the jury to belief “from the evidence.” In an action for personal injuries, the court instructed the jury, that if they found the defendant guilty they should assess his damages, and the instruction then proceeded to state the elements that might be considered in fixing the amount of damages, and closed by the words, “as shown by the evidence:” Held, the instruction was not open to the objection that it allowed the jury to assess any amount, without limiting it to any belief as to what the evidence showed. The finding of the defendant guilty as specified in the instruction, presupposed a belief, from the evidence, in the truth of the facts referred to in previous instructions.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.
    Mr. George Willard, for the appellant.
    Mr. John Lyle King, for the appellee.
   Mr. Justice Magruder

delivered the opinion of the Court :

This suit was commenced in the Circuit Court of Cook County on July 3, 1874, by the appellee to recover damages for personal injuries received July 5, 1872. On the latter day, appellee was riding in a buggy westward on Eighteenth street in the city of Chicago and came to Stewart Avenue, along which the railroad tracks of the appellant, ten or twelve in number, run from north to south and from north-east to south-west. He was there stopped hy a train passing on one of the tracks farthest to the west, and waited for some time for an opportunity to get across. A number of stationary cars, standing on one of the easterly tracks south of Eighteenth street, obstructed his view of the tracks between the stationary cars on the east and the moving train on the west. When the latter train had passed, he was signaled to come on and motioned to to hurry up by the flagman, whose duty it was to give signals of the movements of the cars and engines. Before he could cross the net-work of tracks, a train backing up from the south and theretofore hidden by the stationary cars, stopped his further progress by moving directly in front and so near as to touch the horse’s head. The horse became frightened and reared and plunged and hacked the buggy towards the east, where it was in danger of colliding with a locomotive advancing from the north in appellee’s rear. In this state of affairs the whistle of the locomotive was suddenly blown and increased the fright of the horse. In peril of his life from the train in front of him, the locomotive in the rear of him and the plunging of the frightened horse, appellee jumped from the buggy and received the injuries complained of.

The declaration charges that the servants of appellant were guilty of negligence in signaling appellee to advance across the tracks, when an approaching train, that he could not see, made it unsafe to do so, and in driving the locomotive along the track at that time and needlessly and improperly blowing its whistle.

The suit, as originally begun by summons issued on July 3, 1874, was against the Pittsburgh, Fort Wayne and Chicago Railroad! Company. The alias summons, dated July 23, 1874, was served, July 31, 1874, on R. C. Meldrum as agent. The original declaration was filed August 10, 1874, to which the general issue was pleaded. The first trial was had in April, 1876, and resulted in a verdict of $3000. A new trial was granted. The second trial took place in November, 1876, and resulted in a verdict of $4000. A new trial was again granted. The third trial began on March 26, 1877, but on March 27, 1877, leave was given to plaintiff to amend by substituting the Pennsylvania Company in place of the Pittsburgh, Fort Wayne and Chicago Railroad Company, a juror was withdrawn and the cause continued. The summons issued and dated on March 27, 1877, was served, on March 28, 1877, on the Pennsylvania Company by reading to R. C. Meldrum, agent.

March 27, 1877, an amended declaration was filed, consisting of five counts, to which The Pennsylvania Company filed two pleas: first, general issue, and second, statute of limitations, the latter plea being that action did not accrue within two years next before suit was brought. To the second plea four replications were filed, each of which was demurred to, and demurrer sustained as to second and third and overruled as to first and fourth. Issue was joined on the first replication and two rejoinders were filed to the fourth. The rejoinders were demurred to, but the demurrer was overruled and plaintiff elected to stand by it. June 4, 1877, an order was entered substituting the Pennsylvania Company for the Pittsburgh, Fort Wayne and Chicago Railroad Company.

In September, 1877, a third trial was had, resulting in verdict and judgment for $3000. An appeal was then taken to the Appellate Court, where the judgment was reversed and the cause remanded. The mandate was filed in October, 1880. Afterwards in January, 1885, leave was granted to plaintiff to withdraw all replications then on file and to file new replications to the second plea, upon the first of which issue was joined, and to the second and third of which rejoinders were filed and demurred to. A fourth trial was begun in September, 1885, but plaintiff withdrew a juror and the cause was continued. The fourth trial was, however, again begun and finished in November, 1886, and resulted in verdict and judgment for $5000. The latter judgment has been affirmed by the Appellate Court, whence it comes before us by appeal.

The first of the new replications to the second plea averred, that the defendant, The Pennsylvania Company, was a foreign corporation possessed of and operating solely and exclusively the Pittsburgh, Fort Wayne and Chicago Railroad, extending from Chicago to Pittsburgh, and all the cars etc., and the servants etc., running and operating same were the servants etc., of the defendant, and the causes of action mentioned in the declaration were solely caused by the negligence of defendant’s servants etc.; that Meldrum was local and general agent of defendant in Chicago, and, on July 3, 1874, plaintiff sued out summons and impleaded defendant in the name of the Pittsburgh, Fort Wayne and Chicago Railroad Company (the said Pennsylvania Company being known and reputed as the Pittsburgh, Fort Wayne and Chicago Railroad Company); that the alias summons against defendant in the reputed name of Pittsburgh, Fort Wayne and Chicago Railroad Company was served, July 31, 1874, on Meldrum as agent of Pennsylvania Company; that the Pennsylvania Company appeared by its solicitors and, without pleading in abatement, pleaded to the merits etc. The replication then sets forth the trials in April and November, 1876, the amendment and substitution of March, 1877, the issuance of summons in March, 1877, against the Pennsylvania Company and its service on Meldrum, as agent of that company, etc., and concludes as follows: “And so plaintiff says this suit is the same suit commenced against defendant in name of Pittsburgh, Fort Wayne and Chicago Railroad Company and that said causes of action accrued within two years before commencement of suit.”

If the suit had been begun against the Pennsylvania Company by that name, it was undoubtedly commenced in time to escape the bar of the statute. The theory of the appellant is, that the action, having been begun against the Pittsburgh, Fort Wayne and Chicago Railroad Company, was not begun against the Pennsylvania Company, and that the bar of the statute was complete as to the latter company because it was not made a party until 1877, more than two years after the cause of action accrued. To answer this position appellee contends, that the Pennsylvania Company was the company sued in the first place, but that it was merely sued by the wrong name, to-wit: by the name of the Pittsburgh, Fort Wayne and Chicago Railroad Company.

The law undoubtedly is that, where the real party in interest and the one intended to he sued is actually served with process in the cause, even though under a wrong name, he must take advantage of the misnomer by plea in abatement in such suit; and, if he does not, he will be concluded by the judgment or decree rendered the same as if he were described by his true name. (Pond v. Ennis, 69 Ill. 341.) If the Pennsylvania Company was the real party sued and served, though by the wrong name, it should have pleaded the misnomer in abatement. It did not do so. The first plea filed was to the merits.

The issue made upon the plaintiff’s replication to defendant’s second plea was whether or not the Pennsylvania Company was sued and impleaded by a wrong name and served with summons under a wrong name. The issue thus made was one of fact and was submitted to the jury along with the other facts. This question of fact, no less than the other questions of fact, is settled and determined, so far as we are concerned, by the judgment of the Appellate Court.

Defendant, upon the trial, introduced no evidence whatever under either plea. All the proof in the record was put in by the plaintiff. The latter called to the stand and examined several of appellant’s officers,'agents and attorneys.. It appeared from their testimony, that foreclosure proceedings were instituted against the Pittsburgh, Fort Wayne and Chicago Railroad Company in 1867 or at some date prior thereto; that the road was sold out under decree in such proceedings and purchased by the Pittsburgh, Fort Wayne and Chicago Railway Company, which was thenceforward its owner; that thereafter the Pittsburgh, Fort Wayne and Chicago Railroad Company ceased to do business, ran no cars, operated no joad and simply retained an organization for the purpose of closing up its affairs; that the Pittsburgh, Fort Wayne and Chicago Railway Company operated the road until June 7, 1869, and then leased it to The Pennsylvania Railroad Company, which latter company assigned the lease in 1870 or 1871 to the appellant, The Pennsylvania Company; that the appellant was operating the road and running the cars, when the accident occurred and when the suit was brought; that the cars on the track at that time were marked P. Ft. W. and C. R. R. and R. W.; the signboards were marked P. Ft. W. and C. Co.; the initials, P. Ft. W. and C. Ry. were on the locomotives; the same lettering was on the windows of the freight and ticket offices, though the name of the Pennsylvania Company was also on the transom over the door and on some of the windows; that Meldrum was general freight agent of appellant ; that the officers of appellant were consulted about the accident and made reports in reference to it to the main office in Pittsburgh; that appellant’s attorneys filed the original plea and defended the original suit etc. There was also testimony tending to show, that the plaintiff intended to sue the company, which was running the cars at the time the injury was committed and which was employing the servants charged with the negligence complained of; and it is undisputed that that company was none other than the appellant.

This testimony, which was strenuously objected to by appellant’s counsel, was competent as bearing upon and tending to prove the issue of fact made upon the replication to the second plea. Indeed, it would seem to have been difficult for any ordinary man to find out just what name, among the many names made use of, was the real name of the company, whose servants were in charge of the cars and the tracks at the time appellee was injured.

We do not think that the objections, made by appellant to the instructions 'which were given upon the subject of the plea of the statute of limitations, are well taken. These objections fall with the objections to the testimony already referred to. The instructions in relation to the plea were based upon the testimony tending to show the use of the wrong name, and merely told the jury in substance that the statute of limitations did not apply, if the facts set up in the replication as above stated should be found from the evidence to be true.

While the Pittsburgh, Fort Wayne and Chicago Railway Company, appellant’s lessor, may have been liable for the injury, yet appellant, the lessee, was also liable. The Railway Company was not sued. The defendant originally sued was called the Pittsburgh, Fort Wayne and Chicago Railroad Company. As the corporation formerly known by that name was virtually defunct and existed only to wind up old business and not to attend to new business, appellant’s officers and agents could not have supposed that corporation to have been the defendant intended to be sued, when service was had upon appellant’s own representative in Chicago.

The seventh instruction given for plaintiff begins with these words: “If the jury believe from the evidence that a flagman of the defendant improperly and inopportunely signaled the plaintiff’s team” etc. This language is criticized upon the alleged ground, that it bases the right of recovery not upon the negligence or carelessness of defendant’s servant; but upon the question whether or not such servant 'performed his duty in an improper and inopportune manner. The words “carelessly” and “negligently” are in the declaration, and, if they had been added to the words used in the instruction, the latter would have been more technically accurate. But we do not think it was sufficiently inaccurate to mislead the jury.

“Improper” means “not fitted to the circumstances.” “Inopportune” means “unseasonable in time,” or “at the wrong time.” If the flagman signaled to the plaintiff to come on, when the circumstances were such as to require him either not to signal at all or to signal for a further waiting, or if the flagman signaled to plaintiff to come on at a time when a train, unseen by plaintiff, but which the flagman was bound to observe, was moving near and directly towards the team, then such flagman was guilty of negligence in the performance of his duty. Moreover, the fifth instruction had called attention to the ease of one person being put in peril by the “negligence and misconduct” of another, and had directed inquiry to the question whether the plaintiff, in the exercise of ordinary care, had been compelled by “the negligence of the defendant” to jump from his buggy.

The seventh instruction is also objected to as basing the right of recovery solely upon the action of the flagman, and not upon the action of the engineer in backing the locomotive and blowing the whistle. Inasmuch as the original declaration attributed the injury to the moving and whistling of the locomotive in the rear of the team and to no other cause, while the amended declaration, filed in 1877, added the improper signaling of the flagman as a further cause of the injury, it is, therefore, claimed that the amended declaration set up a new cause of action which came within the bar of the statute. Both declarations claim damages for the same injury and for the same fright to plaintiff’s horse. Without, however, passing upon the question whether the ease comes within the principle announced in Illinois Central Railroad, Co. v. Cobb, 64 Ill. 128, it is sufficient to say that the negligence of the flagman and the negligence of the engineer are separately averred in separate and distinct counts, though they are also charged together in one of the counts, and that the plea of the statute of limitations is to the whole declaration. Where separate causes of action are set up in separate counts and defendant pleads the statute to the whole declaration, plaintiff is entitled to recover if one of his causes of action is not within the bar. (1 Chitty’s Pl. 546; Perkins v. Burbank, 2 Mass. 81.) The evidence tends to establish negligence on both of the grounds mentioned in the amended declaration. To justify him in making the point now raised, the defendant should have pleaded separately to that portion of the declaration which has reference to the conduct of the flagman.

The ninth instruction given for the plaintiff tells the jury that, if they “find the defendant guilty,” they shall assess his damages etc., and then proceeds to state the elements that may be taken into consideration in fixing the amount of the damages. In regard to this instruction counsel for appellant says: “The amount, which the jury are thereby allowed to assess, is not limited to any belief on their part as to what the testimony shows.” The criticism is not warranted. The enumeration of such effects.of the injury, as may be compensated - for in damages, closes with the words, “as shown by the testimony.” Previous instructions had stated that the. defendant would be guilty, if certain facts should be found from the evidence to be true. The finding of the defendant guilty, as specified in the ninth instruction, presupposed a belief from the evidence in the truth of the facts referred to in such previous instructions.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    Thomas B. Ellis v. The Rock Island and Mercer County Railroad Company.

      Filed at Ottawa May 9, 1888.

    Eminent domain—measure of compensation—as to improvements made under a supposed right. The holder of a mortgage, in possession of the mortgaged premises, the debt being equal to the value of the land, authorized a railway company to enter and construct its road-bed, depot building, side-tracks, etc., over the same, agreeing to make a deed for the land so taken when his title should be perfected. It subsequently turned out that the superior title was in another, and the company sought to obtain title by condemnation against the latter: Held, that the holder of the title to the land was not entitled to be paid the value of the improvements so made in good faith under supposed right, by the railway company, in addition to the value of the land taken.
    Appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    Mr. John C. Pepper, and Mr. George W. Spahr, for the appellant:
    A railroad company which takes lands without permission, and without proceedings to condemn, is a trespasser. Graham v. Connersville, 36 Ired. 463; Bloodgood v. Mohawk, 18 Wend. 9; Railroad Co. v. Wade, 10 Kan. 352; 1 Redfield on Railways, (3d ed.) 240-265.
    The railroad being a trespasser, the improvements erected by it belong to the owner of the soil. Matler v. Railroad Co. 6 Thomp. 298; Graham v. Columbus, 27 Ind. 260; Washburn
      v. Sprout, 16 Mass. 449; Hill on Fixtures, sec. 45; Meniam v. Brown, 128 Mass. 391; Pierce v. Goddard, 22 Pick. 559; Hunt v. Bay State, 97 Mass. 279; Hazen v. Boston, 2 Gray, 574; Perkins v. Railroad Co. 72 Maine, 95; Railroad Co. v. Jones, 68 Ala. 48; Lehigh Coal Co. v. Railroad Co. 35 N. J., Eq. 379; Platt v. Bright, 31 id. 31.
    Improvements made on real estate, of a fixed and permanent character, and attached t.o the realty, by one who has no title or interest in the premises, and without the consent of the owner of the fee, become a part of the realty, and vest in the owner of the fee. Cable v. Ellis, 120 Ill. 136; Mathes v. Dobschuetz, 72 id. 438; Dooley v. Crist, 25 id. 556; Martin v. Beatty, 54 id. 100; Dart v. Hercules, 57 id. 446; Wood v. Whelen, 93 id. 153.
    Mr. Henry Curtis, for the appellee:
    The law does not require a railway company seeking a condemnation of land theretofore entered upon by it for a right of way, to pay the owner of the land for structures placed upon it at its own expense, with a view of subsequently acquiring the right to the premises. This is so if the original entry were a bare trespass. Railroad Co. v. Goodwin, 111 Ill. 273; Justice v. Railroad Co. 87 Pa. St. 28; Morgan's Appeal, 39 Mich. 675; Lyon v. Green Bay, 42 Wis. 548; Railroad Co. v. Dunlap, 47 Mich. 456; Greve v. Railroad Co. 26 Minn. 66; Railroad Co. v. Armstrong, 46 Cal. 85; Secombe v. Railroad Co. 23 Wall. 118; Jones v. Railroad Co. 70 Ala. 232; Railroad Co. v. Duancy, 42 Miss. 602; Daniels v. Railroad Co. 41 Iowa, 52; Railroad Co. v. Boorem, 28 N. J. Eq. 450.
   Mr. Justice Mulkey

delivered the opinion of the Court:

In the spring of 1887, the Rock Island and Mercer County Railroad Company commenced proceedings, under the Eminent Domain act, in the Mercer county circuit court, to condemn for right of way, depot grounds, etc., a part of a certain tract of land belonging to the appellant, Thomas B. Ellis. After settling the pleadings, which are unusually prolix, the cause was heard before the court and jury, resulting in a finding and judgment in favor of Ellis, and against the company, for $1050. Ellis brings the record here, and asks a reversal on a number of grounds.

The greater portion of the matter which has found its way into the record throws but little light upon the real issue in the case, and it might, therefore, with profit to all parties, have been dispensed with altogether. As in most cases of this kind, the main question is, How much shall the petitioner pay to the land owner as compensation for the land actually taken, and what, if anything, on account of damages to the portion not taken ? The company does not deny its liability, but simply questions its extent.

We do not propose to enter upon a discussion of the evidence, or of the rulings of the court upon the vast amount of collateral and foreign matter that has been dragged into the record, but will content ourselves with stating, in general terms, the conclusion we have reached after a very careful consideration of the evidence.

Whatever difficulty is encountered in the case grows out of the fact that the railroad improvements and structures on the land sought to be condemned were made by the company years ago, at its own costs and charges. In 1876, P. L. Cable was in possession of the land under a mortgage lien, and other claims upon it, apparently valid, amounting, as was then supposed, to the full value of the property. While things were in this condition, the company, during the year just stated, made an arrangement with Cable, by which it took possession of the land for the purposes indicated in the petition, and was to receive a conveyance therefor when he had perfected his title. Under this arrangement, the company, in good faith, so far as we can see, located and built, at great expense, its road-bed, side-tracks,, switches, depot building, stock yards, etc., which, for the purposes it is sought to be condemned, greatly enhanced its value. It has since turned out, however, that the appellant, Thomas B. Ellis, had the superior title to the land, and he now insists that he is entitled, not only to what the land itself is worth, but to its value as enhanced by the improvements put upon it by the company. Whether this claim is well founded or not, presents the only question of any importance in the case. Upon the authority of the case of Chicago and Alton Railroad Co. v. Goodwin et al. 111 Ill. 273, the lower court ruled against the appellant on this question, and it is not perceived -how it could have done otherwise, without disregarding the rule therein laid down. This court is fully satisfied with the decision in that case, both on principle and authority.

It is also objected, that the damages allowed by the jury, outside of the question just discussed, are inadequate, and altogether too small. We are unable to say that the damages are so grossly inadequate as to justify this court in interposing on that ground. In short, we find no sufficient cause to reverse the judgment of the court below.

The judgment will be affirmed.

Judgment affirmed„


author: Mr. Chief Justice Sheldon

text:
    George F. Harding v. Frederick C. Gibbs.

      Filed at Ottawa May 9, 1888.

    1. Contract—option to purchase—strictness required in its exercise. In the case of a unilateral contract, where one party has the option to purchase property, and the other is bound to sell upon the exercise of the option, by the one having the same, any delay on the part of the latter in making and giving notice of his election to buy, when called upon under the terms of the agreement to make his election, will be viewed with especial strictness. To avail of such an option, the party having the right is held to a strict compliance with the terms and conditions upon which it is made to depend.
    2. Same—the particular case—a contract construed—involving an option to purchase. The equitable owner of property leased the same for a term of five years, with the privilege to the lessee to purchase the same during the first year of the term for $9500, and it was agreed that if the lessor had an offer to purchase, ten days notice thereof should be given to the lessee, and he was to have the option of buying at the price offered, (not, in any event, to exceed $9500,) and if he did not decide to purchase within ten days, the lessor might sell the property, but if the lessee elected to purchase, he was to have thirty days to close the purchase. It was also agreed, that in the event the lessor should have an offer for the property after the first year, the lessee should have the privilege of buying at that offer. About a month after the execution of the lease, a third party offered the lessor $9500 for the property, and the latter caused a deed to be made to the purchaser, and served a written notice of the offer on the lessee, signed in the lessor’s name, his sale depending on the termination of the lessee’s option. The lessee paid no attention to the notice, but before the end of the first year offered to take the property at the price named, and tendered the proper writing for that purpose to the purchaser, and on his refusal to sell, filed a bill for the specific performance of the contract: Held, that having failed to make his election at the proper time, the lessee was not entitled to the relief sought, and that the notice by the lessor, instead of his grantee, was sufficient to call upon him to make his election.
    3. The option given the lessee was not an absolute one to purchase, at any time within the first year, at the price named, but was subject to the condition, that if the lessor should receive an offer at any time during the year, and give notice thereof, then the option- should be exercised within ten days thereafter, or be terminated. The fact the lessor had made a deed when the notice was served, could not change the result, but showed that the offer was made in good faith, and could not operate to prevent the lessee from making his election.
    Appeal from the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.
    Mr. George R. Grant, for the appellant:
    Time is of the essence of this contract. Lowery v. Niccolls, 11 Bradw. 453; Steele v. Biggs, 22 Ill. 655; Hoyt v. Tuxbury, 70 id. 331.
    When the contract is unilateral, as in the case of an option to buy, any delay of the party entitled to its benefit is viewed with special strictness. Fry on Specific Per. (3d Am. ed.) p. 527, sec. 1073.
    A party asking a specific performance of a contract must show clearly that he has at all times been “ready, eager and willing” to perform his part, more especially when the contract is unilateral. Phelps v. Railroad Co. 63 Ill. 468.
    Mr. C. H. Morse, also for the appellant.
    Mr. Pliny B. Smith, and Mr. William B. Gibbs, for the appellee :
    Harding having purchased with notice of appellee’s rights, will, in equity, be required to perform his vendor’s contract. Waterman on Specific Per. sec. 75; Smith v. Phillips, 1 Keen, 700; Bird v. Hall, 30 Mich. 74; Leverty v. Moore, 33 N. Y. 664; Hunter v. Boles, 24 Ind. 500; Keenan v. Williams, 22 Iowa, 378; Bishop v. Newton, 20 Ill. 180; Foss v. Haynes, 30 Me. 89; Smoot v. Rea, 19 Md. 398,
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was a bill for specific performance of an agreement for the sale of certain real estate.

Frederick C. Gibbs, on March 25, 1885, took a lease from Uzziel P. Smith Of the premises in question, for the term of five years, from May 1, 1885. At the same time there was indorsed on the lease an agreement, signed by both parties, that during the first year of the tenancy the lessee was to have the privilege to purchase the premises at the sum of $9500, of which $2250 was to be paid in cash, $2250 on or before one year after date of delivery of a warranty deed, to be secured by note and trust deed, and the balance by the assumption of a note and trust deed already on the premises, for the sum of $5000. But if the lessor should have an offer for the property, ten days notice thereof was to be given to the lessee, and he was to have the privilege of buying at said offer, said price, in any event, not to exceed $9500; and if the lessee did not desire to purchase the property, the lessor should have the privilege of selling the same, but if the'lessee should desire to purchase, he should be allowed thirty days to close the purchase; and in the event of the lessor having an offer for the property after the expiration of the first year, the lessee was to have the first privilege of buying at said offer. George F. Harding offered Smith for the property $9500, assuming the mortgage and cancelling some indebtedness, the balance, $1100, to be paid in cash. Harding took the property on those terms. A quitclaim deed of the property, bearing date April 1, 1885, was made to him by Abner C. Harding, who held the legal title to the property in his name, in trust for Smith. On May 9, 1885, a written notice, signed by Smith, was served on Gibbs, that Smith had an offer of $9500 for the property, and Gibbs did not make any election to purchase the same. A previous notice had' been given some two or three weeks before, having signed to it the name of Smith, by Harding. On February 15, 1886, Gibbs made a tender to Harding of the money, and note and trust deed provided for in the contract, and offered to assume the $5000 mortgage then on the premises, and demanded a deed from Harding, which the latter declined to execute, on the ground that Gibbs’ option had been determined by the notice of May 9. Gibbs then filed this bill against Smith and Harding for the specific performance of the contract. The Superior Court decreed the relief prayed, and Harding took this appeal.

There is essentially no dispute as to the facts in the case, and the justification of the decree is rested by appellee’s counsel on but the one point, that the notice of the offer of purchase of the property should have been given by Harding, instead of by Smith. As there had been a deed of the property made by Smith to Harding before the giving of the notice, it is insisted that by such conveyance all right in the property passed from Smith and vested in Harding; that at the time of the giving of the notice Smith had no right or interest with respect to the property, but that it was all in Harding, and that he alone could give the notice.

At the time Harding took his conveyance of the property, he took also an assignment of the lease between Smith and Gibbs, with an agreement indorsed thereon, signed by himself, that he does not accept the assignment of the lease, except upon the understanding and agreement that Smith shall give Gibbs notice of his offer for the property, and his purchase shall not be effectual until Gibbs’ right to buy shall terminate under such notice. It is said Gibbs had no notice of this agreement. This may be; it does not appear, by the record, that he had, and we will consider the case irrespective of this agreement.

There was here but an option to purchase. The obligation was on only one side. Smith was obliged to sell, but Gibbs was not bound to purchase. Where the contract is in anywise unilateral, as in the case of an option to purchase, any delay, in the party in whose favor the contract is binding, is looked at with especial strictness. (Fry on Specific Per. sec. 733.) Smith was willing to give Gibbs the privilege of buying the property during the first year of his tenancy, but he was not willing to lose the opportunity of making a sale during that time. So he does not give Gibbs an absolute option of purchase within one year, at the price named, but gives the option with this express proviso, that if, during the year, Smith should have an offer for the property, and should notify Gibbs of it, Gibbs should thereupon have ten days in which to make an election whether he would purchase the land upon the terms offered by such third party, and that if he should elect to so purchase, he should have thirty days in which to close the transaction. If, however, he did not so elect, then Smith was to be at liberty to sell the property. To avail himself of this option required strict compliance on the part of Gibbs. The precise condition had occurred here which terminated this option. There was an offer to purchase, notice by Smith to Gibbs of the offer, and failure of Gibbs to make an election to purchase at the price offered, within ten days after the notice. The fact that there had been a deed made under the offer was of no consequence to Gibbs. His was the superior right, and the exercise of his option, within the time limited, would have avoided the conveyance which had been made. The conveyance rather strengthened the case of appellant. It showed, not only an offer to purchase, but demonstrated that the offer was a real one. Had there been but a mere offer to purchase, there might have been doubts as to its genuineness. Whether the notice was given by Smith or Harding seems but a matter of so merely a technical character that it should not have favor in a court of equity. There is no substantial equity in it. The terms of the agreement required the notice to be given by Smith, as it was; but whether given by Smith or Harding, Gibbs knew there was a chance to sell the land, and his plain duty, under the agreement, was to exercise his option at once, within the ten days, and not let pass the opportunity to make a sale of the land. He could not, consistently with any principle of fair and honest dealing, under the contract which he had made, destroy the opportunity of making a sale, wait until the expiration of the year, to see if there might not be an increase in value of the land, and then exercise his option to purchase. We conceive, too, that Smith had the right, under the agreement, to give the notice, in order to the protection of his interest under the agreement. If only the purchaser from him, where there had been a sale, could give the notice, then, on the purchaser’s omission to give the notice, Smith might lose the benefit of such sale, as Gibbs could avoid it by the exercise of his option thereafter.

The decree of the Superior Court will be reversed, and the cause remanded for further proceedings in conformity with this opinion.

Decree reversed.


author: Mr. Justice Craig

text:
    Dennis Ryan v. George W. Newcomb et al.

      Filed at Ottawa May 9, 1888.

    1. Usury—effect of a subsequent settlement. Where the former owner of land, after its sale under a deed of trust, has a settlement with the purchaser, the creditor, under which a part of the land is, reconveyed to him, taking his note for a certain sum, secured by deed of trust, this will be such a settlement of the old indebtedness as to preclude him from afterward maintaining a bill to show usury in the original loans. The note last given in such case can not be affected by any usury in the original transaction.
    2. Sale under trust deed—pending suit for an accounting and for redemption. During the pendency of a bill by the maker of a trust deed, against the creditor thereby secured, charging usury and payment, and asking for an accounting, and for redemption on payment of the sum found due, a sale was made, under the trust deed, to a third person: Held, that the power of sale was improperly exercised pending the suit, and that the sale should for that reason be set aside, and a redemption allowed on payment of the principal and interest.
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. Alfred Sample, Judge, presiding.
    Mr. J. B. Rice, for the plaintiff in error.
    Messrs. C. H. & C. B. Wood, for the defendants in error.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Dennis Ryan, against George W. Newcomb, and others, for an accounting, and for leave to redeem certain lands from a sale under a trust deed, and for general relief.

It appears from the evidence, that in April, 1871, the complainant, Ryan, borrowed of George W. Newcomb $1600, and to secure the payment of the money gave a note, and trust deed on the south-east quarter of section 4, township 32 north, range 13, east of the third principal meridian. In September of the same year, complainant borrowed of Newcomb $1182, and secured the payment by deed of trust on the south-east quarter of section 4, and on the east half of the south-west quarter of section 4, in the same township. On the 20th of January, 1875, another loan was made, and a trust deed securing $600 was executed on the two hundred and forty acres of land last described. On the 18th day of May, 1878, in default of payment, the lands (two hundred and forty acres,) were sold on the trust deed given to secure $600, and bid off by Newcomb, to whom the trustee executed a deed. It also appears that Ryan had some negotiations with John Kinsella for money, and, pending the negotiations, on January 28, 1879, he conveyed the two hundred and forty acres of land to him, and placed the deed on record. Shortly after the conveyance to Kinsella, the complainant commenced negotiations with Newcomb to procure all or a portion of the lands back. This resulted in an arrangement between the parties, under which Ryan procured a deed from Kinsella and wife, to Newcomb, of date January 28, 1879, purporting to convey the entire two hundred and forty acres, and Newcomb conveyed to-Ryan the east half of the south-west quarter of said section 4, and at the same time Ryan gave Newcomb his promissory note for $1400, secured by a deed of trust on the land. On March 8, 1884, on default of payment, the eighty-acre tract was sold on the deed of trust, and purchased by Collins H. Jordan, to whom the trustee executed a deed. The original bill was filed with a view to redeem from the sale under the deed of trust, for $600, which was made on the 18th day of May, 1878. In the amended bill, complainant seeks to redeem from the sale of date March 8, 1884, wherein the eighty-acre tract was sold on the deed of trust given to secure $1400.

In each of the three loans of money which the complainant obtained of Newcomb, a greater rate of interest than allowed by law was charged and paid. The three transactions were all usurious, but we do not think the complainant is in a position to claim any benefit or advantage on account of the usury he has paid or agreed to pay. So far as the three usurious transactions are concerned, they have all been settled and adjusted by the parties. After Newcomb had purchased the lands on a sale under the deed of trust given to secure $600, and held the legal title, the complainant and Newcomb came to a final settlement of all their transactions. Under this settlement, complainant caused Kinsella, to whom he had conveyed the two hundred and forty acres of land, to convey the lands to Newcomh. In consideration of the conveyance, New-comb sold complainant the east half of the south-west quarter of section 4, for $1400. Under the contract, a deed was made, and a note and deed of trust taken to secure the purchase money for the land. This was a final adjustment of all matters existing between the parties, and the note for $1400 can not be regarded as representing any portion of the money originally loaned. The note was executed, not for money loaned, or as a balance due for money previously loaned, but its consideration was a sale of the eighty acres of land. In Puterbaugh v. Farrell, 73 Ill. 213, we held, where an old transaction is settled and closed, and a new loan made, the borrower will not be allowed to set up usury in the former transaction, as against the new loan. The principle announced in the case cited will apply here. The old transaction was settled and closed, and the conveyance of the eighty acres, and the taking of a note and deed of trust to secure the amount due for the land, was the beginning of a new deal between the parties, disconnected with the former loans or former transactions.

While the original bill was pending, the eighty acres of land which, on settlement, had been conveyed by Newcomb to complainant, was advertised and sold under the trust deed given to secure the $1400 note. This sale occurred March 8,1884, and the land was purchased by C. H. Jordan. After the sale Jordan commenced proceedings to recover possession of the land, and the complainant filed an amended bill to enjoin Jordan from recovering possession, and also asking to redeem from this sale. At the time’the sale occurred, complainant’s bill was pending in the circuit court of the county where the land was situated. In this bill he claimed that he was not indebted to Newcomb in any amount, and asked for an account; that he owned the eighty acres of land; that nothing was due on the $1400 note. The title to the eighty acres of land, the $1400 note, and the trust deed given to secure it, were all involved. The bill pending was notice to Jordan, and all others, of complainant’s rights and claims in the premises, and Jordan can occupy no better position than Newcomb would have occupied had he purchased at the sale. While the bill was pending, and it was undetermined what amount complainant owed on the deed of trust, no sale ought to have been made, and the power of sale having been improperly exercised, we are of opinion complainant should, in equity, be allowed to redeem from the sale of March 8, 1884, upon the payment of the $1400, and such interest as is due thereon.

The decree of the circuit court and the judgment of the Appellate Court will be reversed, and the cause remanded to the circuit court, with directions to enter a decree allowing complainant to redeem from the sale under the $1400 deed of trust, upon the payment of the amount heretofore stated, within such reasonable time as the court shall determine.

Judgment reversed.


text:
    Stephen A. Hall et al. v. Marion O. Hall et al.

      Filed at Ottawa May 9, 1888.

      1. Specific performance—of a contract adjusting differences among devisees, in disregard of a will. An agreement between the widow and heirs of a deceased person, to set aside the will of the decedent, giving one of the heirs the greater part of his estate, and by such agreement prevent a resort to proceedings to contest the will, and whereby each of the heirs and the widow bind themselves to pay a ratable share of the indebtedness of one of the heirs to another, and thus avoid litigation, is such an agreement as a court of equity will look upon favorably, and readily interpose for its specific performance, unless there be some insuperable bar to prevent.
    2. Same—and herein, whether the contract is complete in itself—and as to matters resting in parol. After the death of a testator, leaving the larger part of his estate to one of his several heirs, by a will executed under such circumstances as to make it doubtful whether it would stand a contest, and for the purpose of avoiding threatened litigation, the heirs and -widow executed an agreement in writing, whereby they jointly and severally agreed to settle the demand of one of their number on another heir, by each bearing his or her proportional part, and to set aside the will and settle the estate as in case of intestacy: Held, that such written agreement was of itself a complete contract, and was obligatory on all, notwithstanding it may have been understood at the time of its execution that a more formal instrument should thereafter be executed. The fact that it may have been agreed that one of the heirs was to have the home farm at an appraisal, being a matter distinct from the subjects of the agreement, would not render the same incomplete.
    3. In such case, one of the heirs can not defeat the specific performance of such agreement on the ground that the written agreement was accompanied with a parol agreement as to what particular land he was to have at its appraised value, when each of the others consent that he shall have such land, and offer to convey that part to him in accordance with the parol contract claimed by him.
    4. Although the court may not decree the specific performance of a contract with a variation from the contract, it is competent for the defendant to set up a parol variation from the written contract, and it will depend upon the particular circumstances of each case whether that is to defeat the plaintiff’s right to specific performance, or whether the court will direct the performance of the contract, taking care that the subject matter of the parol agreement or understanding is also carried into effect, so that all parties may have the benefit of what they contracted for.
    5. Same—protecting dower interest. Where a person dies after having made an agreement for the equal division of the lands and property of an estate, the fact that his widow is entitled to dower in his share of the estate, is no obstacle to a decree for the specific performance of the contract against his heirs. In such case the decree of conveyance may be made subject to her right of dower.
    Appeal from the Circuit Court of Kane county; the Hon. Charles Kellum, Judge, presiding.
    This was a bill in chancery, for the specific performance of an alleged agreement, brought by Stephen A. Hall, Fitzena A. Summers and Matilda H. Plummer, children and heirs-at-law of Ophelia B. Hall, the widow of Alexis Hall, deceased, against Marion 0. Hall and others, the widow and children and heirs-at-law of Eugene A. Hall, deceased.
    On December 7, 1881, Alexis Hall made his will, by which he gave the greater share of his estate to his son Eugene A. At that time Alexis Hall was upward of eighty years of age, one side was paralyzed, and he had become so enfeebled by age and disease that he could not go about without help, and his memory was much impaired. In November following, his children signed a paper, of which the following is a copy:
    “State of Illinois,

      DeKalb County. ) November ...., 1882.

    “We, each and all of us, whose names are hereto affixed, do solemnly agree to urge and insist upon a just, fair, impartial and equal distribution of all moneys, credits and property, both real estate and personal, of our father, Alexis Hall, between the four surviving children, whenever the proper time for such distribution shall come.
    (Signed) Stephen A. Hall,
    Eugene A. Hall,
    Fitzena A. Summers,
    Matilda H. Plummer.”

      Alexis Hall died January 15, 1883. On January 19 after, there was a meeting of the widow and children of the deceased at his former homestead, as a result of which the paper of which the following is a copy was drawn up and signed by the widow and all the children of the deceased:
    “Big Rock, Jan. 19, 1883.

    “We, jointly and severally, agree to settle the demands of Eugene Hall on Matilda H. Plummer and husband, by hereby agreeing to each bear our proportional part, or each bear one-fifth of $3427.08. And we furthermore agree to set aside the will of Alexis Hall, our father, and insist on a settlement of the estate of said Alexis Hall according to the laws of the State of Illinois for such cases made and provided.
    (Signed.) Stephen A. Hall,
    Fitzena A. Summers,
    Matilda H. Plummer,
    Eugene A. Hall,
    Ophelia B. Hall.”
    As explanatory of this, it appears that on March 29, 1873, S. R. Plummer, (husband of Matilda H.,) John Andrews, and Matilda H. Plummer, gave their note of that date, for $2300, to Eugene A. Hall, due in ten months after date, with interest at ten per cent per annum, upon which a large amount remained due in January, 1883; that Plummer had assigned certain notes and judgments to Eugene A., as collateral security, and that the latter had failed to realize the amount due on these collaterals, as it was claimed, through his own negligence. It is this agreement of January 19, 1883, of which the bill seeks specific performance.
    It is averred in the bill, and the evidence tends to show, that the parties intended to have a more formal instrument drawn up thereafter, which should express their agreement, more fully, and that Hopkins & Aldrich were to prepare such a paper. Mr. Aldrich did prepare more formal papers, and on. February 10, 1883, he went to the Hall homestead and met all the parties except Mrs. Summers, who was detained at home in Aurora. On that day those papers bearing that date were signed by all of the parties except Mrs. Summers, and were left in Aldrich’s hands, as he says, as special custodian, to be held until an agreement was executed between Eugene Hall and Mrs. Summers, for conveyance by her to Eugene of a one-fourth interest in the Alexis Hall farm, and when that was drawn and executed by Eugene, he was to take it, with two other writings, to Mrs. Summers, and she was to sign them.
    On February 22, 1883, Eugene A. Hall died. It was some time after his death that the papers left with Aldrich for Mrs. Summers to sign were executed by her, but the land contract between her and Eugene Hall was never written out, and so not signed by either party. The widow of Eugene, Marion O. Hall, was'appointed administratrix of his estate, and guardian of the minor children, and she repudiated the entire contract between her husband and the other children, and claimed that the Alexis Hall estate was a part of the Eugene A. Hall estate. On March 16, 1883, Stephen A. Hall, for himself and the other complainants, tendered to Marion O. Hall, as such administratrix, the four-fifths part of the Plummer indebtedness, and demanded the surrender of the $2300 Plummer note. She refused both to receive the money and to give up the note. Thereupon the present bill was filed, March 26, 1883. The court below, on final hearing, upon proofs taken, dismissed the bill, and the complainants took this appeal.
    Messrs. Sherwood & Jones, and Mr. J. W. Ranstead, for the appellants:
    If there was a controversy between the children, either commenced or threatened, over the validity of the will, and if this contract was entered into in good faith by the contesting parties, then a settlement of the controversy was a good and sufficient consideration for the contract, whether the will was in fact valid or not. McKinley v. Watkins, 13 Ill. 143; Cassell v. Ross, 33 id. 244; Pool v. Docker, 92 id. 501.
    The promise to pay the debt of Mrs. Plummer was also a sufficient consideration. Buchanan v. International Bank, 78 Ill. 500; Doyle v. Knapp, 3 Scam. 337.
    The parties are bound by this agreement, although they meant to have a more formal writing drawn. Foule v. Freeman, 9 Ves. 351; Thomas v. Deering, 1 Keen, (15 Eng. Ch.) 729; Chinnock v. Marchioness of Ely, 4 DeG., J. & S. 638; Pratt v. Railroad, Co. 21 N. Y. 305; Blaney v. Hoke, 14 Ohio St. 292; Wharton v. Stoutenburg, 35 N. J. Eq. 266; Vermont Street M. E. Church v. Brose, 104 Ill. 212.
    The dower right is no defense to the enforcement of the contract against the heirs. Mathison v. Wilson, 87 Ill. 52; Litsey v. Whittemore, Ill id. 267; Mestaer v. Gillipsie, 11 Ves. 640; Waterman on Specific Per. sec. 104.
    The contract belongs to that class which is favored in equity. Parsons v. Ely, 45 Ill. 232; Kershaw v. Kershaw, 102 id. 312; Fry on Specific Per. sec. 1505.
    Mr. A. J. Hopkins, Mr. N. J. Aldrich, Mr. F. H. Thatcher, and Mr. Charles Wheaton, for the appellees:
    Equity will not enforce a transaction which is incomplete, especially in the case of a voluntary contract. Badgley v. Votrain, 68 Ill. 25; Wadhams v. Gay, 73 id. 417; Clarke v. Lott, 11 id. 115.
    An omission in a written agreement, whether it happened by mistake or fraud, or otherwise, may be proved by parol, and will be grounds for refusing a specific performance of the contract. Jones v. Stathan, 3 Adk. 388; Ramsbottom v. Gosden, 1 Ves. & B. 168; Winch v. Winchester, id. 378; Brooks v. Wheeler, 11 Pick. 439; Best v. Stowe, 2 Sandf. Ch. 298.
    Unless the court is satisfied that the contract embodies the real intent of the parties, specific performance will be denied. Pendleton v. Dalton, Phillip’s Eq. (N. E.) 119; Morganthan v.
      White, 1 Sweeney, (N. Y.) 395; Chambers v. Livermore, 15 Mich. 381; Railroad Co. v. Winter, 1 C. & P. 57.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

The defence set up in this case is, that the contract of January 19, 1883, was not a complete contract, and that not being complete, it is as no contract, and so, that that alleged agreement can not be specifically enforced; that the only complete contract there could have been in the case would have been that of February 10, 1883, had the papers of that date all been executed and delivered, but as they were not, the. attempted contract of February 10 was not completed, and hence there is no contract whatever to be specifically performed.

It would seem from the evidence, that the will of Alexis Hall, made on December 7, 1881, had come to the knowledge of his children, and had created a family dissatisfaction, from its giving to Eugene the larger part of the estate, and its being executed under the circumstances it was, and that threats had been made by the other children that they would contest the will. To reconcile this family difference the writing of November, 1882, appears to have been made and signed by all the children, whereby they agreed that there should be an .equal distribution of their father’s estate between his four surviving children, when the time for such distribution should come. It seems that another cause of difficulty had sprung up between Eugene and his sister Matilda and her husband, from a long standing note for $2300, which had been given by the two latter to Eugene, and was unpaid, and for which the latter had taken collateral securities, which had failed to be collected, from the negligence of Eugene, as was contended. This additional difficulty was amicably composed by these brothers and sisters by their all generously sharing equally among them and the widow the burden of this Plummer indebtedness, and soon after the death of Alexis Hall they came together and executed this second agreement of January 19, 1883. By this agreement all the four children and the widow agree to settle the demands of Eugene on Matilda Plummer and her husband by each bearing one-fifth part of the Plummer indebtedness, and they renew their former agreement of November previous, to set aside the will of Alexis Hall, and that there should be a distribution of his estate as intestate estate. This agreement is signed by the widow, who did not sign the November agreement. This is an agreement of a most praiseworthy kind,— an amicable arrangement amongst brothers and sisters of difficulties between them, which would doubtless have been carried out to the entire satisfaction of them all but for the sudden death of Eugene. It is an agreement which a court of equity will look upon favorably, and readily interpose for its specific performance, unless there be some insuperable bar to prevent.

The written agreement of January 19 is plain, clear and full. It bears upon its face evidence of ample consideration, and is of itself a complete contract. That this would be an obligatory contract, although it was understood at the time that there should thereafter be a more formal instrument drawn up and executed to express the parties’ agreement, is abundantly established by the authorities. (Fowle v. Freeman, 9 Ves. 351; Chinnock v. Marchioness of Ely, 4 DeG. J. & S. 638, (69 Eng. Ch.); Pratt v. H. R. Co. 21 N. Y. 305; Wharton v. Stoutenburgh, 35 N. J. Eq. 266.) All there is that can be urged against the completeness of this written contract of January 19, is that it omits to state one alleged term of the contract which was then made, viz., that Eugene was to have the home farm at an appraisal to be fixed by appraisers. This is an independent matter, separate and distinct from the two subjects of agreement named in the writing,—the Plummer indebtedness and the setting aside of the will. The bill does not ask to have performed a contract resting partly in a writing and partly in parol. It does not depend upon or seek anything whatever respecting the alleged parol part of the contract, but it is the defendants who are placing reliance upon this parol part of the contract, setting it up in defence, and in defeat of the performance of the contract in writing. If the defendants would not have the enjoyment of the parol part of the contract, and so not have the benefit of what they contracted for, there would be some equity in such a defence. The heirs of Eugene allege against the performance of this written contract, that he was to have the home farm, and that this is not expressed in the writing. But if he does get the home farm, and the other children convey their interest in it to him or his heirs, there would seem to be no equity in such a defence of the mere omission of the writing to say that Eugene was to have the home farm at a price to be fixed by appraisers. And just such is the case presented here. Two of the children, Stephen A. and Matilda Plummer, have executed agreements for conveyance to Eugene of their interest in the home farm. The other of the three children, Mrs. Summers, is ready and willing, and offers by the bill, to make a like agreement for conveyance of her interest in the home farm,—so that the defendants do or will, under the offer of the bill, get the entire benefit of the parol part of the contract. There is no equity, then, in the defence which is set up, that this parol part of the contract was not expressed in the writing of January 19, and we think the authorities establish that such a defence is not sustainable where the defendant gets secured to him all the benefit of the parol portion of the contract.

In London and Birmingham Railway Co. v. Winter, 1 Craig & Phill. 57, (18 Eng. Ch.) a bill by the company for the specific performance of a written contract for the purchase of real estate, where there had been a subsequent parol agreement that the company should also pay for timber on the land, and for certain expenses, performance was decreed subject to the parol variation, and Lord Chancellor Cottenham said: “This is not a case within the meaning of those decisions in which the court has said that it will not specifically perform the contract with a variation. If the court finds a written contract has been entered into, and the plaintiff says, ‘That was agreed upon, but then there were certain other terms added, or certain variations made,’ the court holds that in such a ease the contract is not in the writing, but in the terms which are verbally stated to have been the agreement between the parties, and therefore refuses specifically to perform such an agreement. On the other hand, it is quite competent for the defendant to set up a variation from the written contract, and it will depend upon the particular circumstances of each case whether that is to defeat the plaintiff’s title to have a specific performance, or whether the court will perform the contract, taking care that the subject matter of this parol agreement or understanding is also carried into effect, so that all parties may have the benefit of what they contracted for.” And see Robinson v. Page, 3 Russ. 114, (3 Eng. Ch.); Price v. Dyer, 17 Ves. 357.

In 3 Parsons on Contracts, (5th ed.) 389, the author says: “It is a principle of equity jurisprudence that parol evidence is admissible to rebut, but not to raise an equity; and this principle or rule gives rise here to an important distinction. Although to resist a specific performance a defendant may show by parol that the written document does not fully represent the contract between the parties, and thus defeat the bill or compel the plaintiff to accept a performance with a variation, yet a plaintiff can not have a decree for a specific performance of a written contract with a variation upon parol evidence.”

In Park v. Johnson, 4 Allen, 259, after a review of the English cases upon the subject, the'court say: “The weight of authority seems clearly with the plaintiff on this point, (of having specific performance where ready to take the written agreement and fully to perform the omitted stipulation,) and while the court would refuse to give their aid in compelling the literal execution of a written contract which does not contain the whole agreement, they allow the objection to operate no farther than to require the party seeking the aid of the court to modify the written contract so as to embrace all the stipulations that are alleged to have been omitted or subsequently varied.”

When Mr. Aldrich met the parties, on February 10, he brought with him five papers, namely, (1) the agreement between the four children to set aside the will; (2) an agreement between the widow and children to settle the Plummer indebtedness ; (3) a renunciation of the will by the widow; (4) an agreement between Stephen A. Hall and Eugene A. Hall for a conveyance by the former to the latter of an undivided one-fourth of the Alexis Hall farm; (5) a like agreement between Mrs. Plummer and Eugene A. for conveyance of a like undivided fourth. The first three were on that day executed by all the parties there present, and delivered to Mr. Aldrich,—Mrs. Summers being the only party absent. The first three papers contained essentially nothing more than the agreement of January 19, amplified by legal verbiage, and the signing of them by Mrs. Summers was of no moment, as she had signed the 19th of January agreement. The other two agreements for conveyances by Stephen A. and Mrs. Plummer were also signed by them, respectively, on February 10. A like agreement for a conveyance by Mrs. Summers, who was absent, was thereafter to be executed by her, which she has ever been ready and willing, and offers by the bill, to execute. Whatever of incompleteness there may be in these papers of February 10, or any one of them, has no bearing, as we conceive, upon the present bill. It does not call in aid that transaction, and in no way depends upon it. The bill is rested wholly upon the agreement of January 19, 1883, and asks the specific performance of that agreement. As the specific performance is only asked subject to the defendants having all the benefit of the alleged parol part of the agreement which is claimed to have been made, we are of opinion the complainants are entitled to have the agreement of January 19, 1883, specifically performed.

It is claimed that the defendant Marion O. Hall has a dower interest in the land. Whether that be so or not is no objection to a decree of specific performance against the heirs of Eugene A. Hall. Any decree of conveyance might be made subject to whatever right of dower, if any, which Marion O. Hall may have in the land.

The decree will be reversed, and the cause remanded for further proceedings in conformity with this opinion.

Decree reversed.


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    Isaac C. Ogden et al. v. Ruth M. Bemis.

      Filed at Ottawa May 9, 1888.

    1. Tax title—of the process in support of a sale of land for taxes. Every tax deed, to be available for the purpose of passing title, must be founded upon a legal and valid sale, and to render the sale valid it must be made upon legal and proper process.
    2. The want of the certificate of the county clerk to the record of the judgment is a fatal defect in the sale of land for taxes. It is the certified record that constitutes the process, which is indispensable to a valid sale.
    3. Same—variation in name—identity of the grantee with the purchaser. Where a tax deed was made to “Hiram Coombs,” upon a tax sale to “H. Coombs," it was held that the affidavit of the grantee, stating that he did purchase the premises described in the certificate of sale, and requesting that a deed be made to him, etc., was sufficient to show that the grantee was the same person to whom the land was sold.
    4. Same—cancellation of certificate in part. The fact that the holder of a certificate of purchase of land for taxes may have cancelled the same as to a part of the land bought, and a deed is taken only for the part left, there being no explanation of the circumstances under which the cancellation was made, will not render the deed invalid.
    Appeal from the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.

      Messrs. Wilson & Moore, for the appellants:
    It is contended that the deeds to John Carne were based upon sales made without process of law. (Rev. Stat. chap. 120, sec. 196.) Whether the clerk made the proper certificate, and filed the same with the papers, we do not know; but if it was made, though not entered of record, it was nevertheless a valid process. If none was ever made appellee should have proved that fact.
    “Hiram Coombs” will be presumed to be the same person as “H. Coombs,” from his affidavit, and that he was the holder of the certificate.
    The other certificate included the east three-quarters of lot 4. On its back is indorsed, “Chicago) Oct. 17, 1879—Received of E. F. C. Klokke, county clerk, $20.48 on this certificate, for the redemption of the W. 31½ feet of the E. ¾ of lot 4 within.” This will not invalidate the title to the balance of the tract.
    Mr. H. S. McCartney, for the appellee:
    The two deeds to Carne are invalid for want of process. Gage v. Lightburn, 93 Ill. 248.
    There is nothing in the affidavit to show that H. Coombs and Hiram Coombs were the same person.
    The sale of the east three-quarters of lot 4 was an entire sale. There could be no redemption of a part thereof, except by a tenant in common of an undivided share.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 12th day of May, 1888, the appellee, Ruth M. Bemis, exhibited her bill in the Superior Court of Cook county, against the appellants, Isaac C. Ogden, John Carne, Jr., and Hiram Coombs, setting forth that 'she was the owner in fee of certain real estate described in the bill, to which the defendants pretended to have some claim or title by virtue of certain tax deeds, particularly described in the bill. These tax deeds are charged to be illegal and void, and the bill prays that they be set aside as a cloud upon complainant’s title. Upon the hearing, a decree was entered in conformity with the prayer of the bill, from which the present appeal is prosecuted.

The tax deeds in question are four in number. The first is founded upon a tax sale to B. W. Bridge, in 1877, and was executed by the proper authorities to the South Park Commissioners on the 10th of August, 1880. The second was executed to Hiram Coombs, February 8, 1882, and is based upon a tax sale made in 1879. The third and fourth bear date December 17, 1885, and both run in the name of John Carne, as grantee, and are based upon tax sales made in 1883, one being for a special assessment, and the other for general taxes on the same property.

The sales under which the last two deeds were made, were invalid, and it follows, the deeds themselves are equally so, for every tax deed, to be available for the purpose of passing title, must be founded upon a legal and valid sale. The sales in question were made without process, as required by the 196th section (Starr & Curtis) of the Revenue act. That section provides as follows: “On the day advertised for sale, the county clerk, assisted by the collector shall carefully examine said list upon which judgment has been rendered, and see that all payments have been properly noted thereon, and said clerk shall make a certificate to be entered on said record, following the order of court that such record is correct, and that judgment was rendered upon the property therein mentioned for the taxes, interest and costs due thereon, which certificate shall be attested by the clerk under seal of the court and shall be the process on which all real property or any interest therein shall be sold for taxes, special assessments interest and costs due thereon and may be substantially in the following form,” etc. The record here contemplated was made up in strict conformity with the statute, except that the clerk’s certificate was wanting. This was a fatal defect, for it is the certified record that constitutes the process, which is indispensable to a valid sale. Eagan v. Connelly, 107 Ill. 458.

With respect to the other deeds, we are inclined to hold that none of the objections urged against them are well taken. It is contended, in the first place, that it does not sufficiently appear that “H. Coombs,” to whom the sale was made, and “Hiram Coombs,” to whom the tax deed was issued, are one and the same person. We think the affidavit made by Hiram Coombs, upon which the deed was issued, sufficiently shows that he was the same person to whom the sale was made. That, together with the ordinary presumptions which arise from the facts shown, we regard as sufficient.

It is objected to the deed made to the South Park Commissioners, as assignee of the certificate of purchase issued to Bridge, that while the latter was the holder of such certificate he cancelled the same as to a part of the real estate therein mentioned. We are unable to say that this was not a legitimate transaction, as the circumstances under which it occurred are not given or explained. Nor is it perceived how the appellee could be prejudiced by it.

For the errors indicated, the decree of the court below is reversed, and the cause remanded, with leave to both parties to amend pleadings, and take additional testimony, if so desired, and for such other proceedings as are not inconsistent with the views herein expressed.

Decree reversed.

       Reporter’s note.—The affidavit of Hiram Coombs, mentioned in the opinion, stated that three months before the time of redemption expired, he published a notice, “in which notice he stated when he did purchase the land or lot described in the annexed certificate of tax sales;” in whose name taxed; description; for what year taxed and when time of redemption would expire; which said notice was inserted on, etc., and that a printed slip and certificate of publication were also filed; “that he (this affiant) relies upon the facts stated in this and other affidavits hereto attached, and the said certificate of publication, as being in full compliance,” and “requests that a deed of the premises described in annexed certificate of tax sale may be issued to Hiram Coombs, this affiant, as provided by law.”


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    Barbara Schneider v. Peter Becker.

      Filed at Ottawa May 9, 1888.

    Resulting trust—bill to establish, and for an accounting. This case states the evidence, facts and circumstances relied on for establishing a resulting trust for an interest in land, and for an accounting, upon bill filed many years after the trust was claimed to have arisen, from which this court is unable to say that a decree dismissing the bill is erroneous.
    Appeal from the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.
    Mr. Edward Roby, for the appellant.
    Mr. G. W. Stanford, for the appellee.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was a hill in chancery, in the circuit court of Cook county, to enforce an accounting by an alleged trustee, as to an undivided part of a certain farm, and to require a conveyance of the legal title to such share of the land to the cestui que trust, as well as the payment of such moneys as should be given to her by virtue of the trust. The defendant denied, by his answer, that he held the title in trust, set up that the claim was stale, and that the complainant and the defendant’s grantor had an accounting and a settlement, upon which complainant released all her claims and demands alleged in the bill. The court, upon final hearing, on proofs taken, dismissed the bill for want of equity, and the complainant took this appeal.

The following facts appear: In 1829 Wendel Becker died in Prussia, leaving him surviving, his widow, Susannah, and six children, named Wendel, Mary, Peter, Joseph, Lena, and Barbara. In 1852 or 1853 the estate of the deceased was sold and converted into money, the whole of the estate amounting to about $3200, making each child’s share about $533. Joseph, Peter and Barbara had come to America, and in the spring of 1852 or 1853, the widow, Susannah, and Wendel and Lena, came to the United States, bringing with' them the residue of the father’s estate, except her portion which had been paid to Mary, and part of his share which had been paid to Joseph. Peter met the widow, Wendel and Lena in New York, and went with them to Sheboygan, Wisconsin, where Joseph was residing. Upon their arrival, Barbara, who was then married, and had become Mrs. Schneider, was living in Cincinnati, carrying on a millinery and dress-making business there, and she came to Sheboygan to see her mother and brother and sister. There, Wendel and the mother paid to Joseph the residue of his share of the father’s estate, out of the money which they had brought with them. They offered to pay to Barbara her share, but she declined to receive it, preferring to let it remain with them. She remained there about two weeks. In the fall after, Wendel and Peter bought the farm in controversy, situate in Cook county, Illinois, consisting of two hundred and eighty acres, at $12 an acre, making $3360. The claim is, that Barbara’s share of her father’s estate went into the purchase of this farm. The deed was taken in the name of Wendel, and Wendel, Peter, Lena, and the mother, immediately moved upon the farm, and continued to live upon it. Lena was married to Louis Munch in 1859, and after that lived one year more upon the farm. Wendel, in whose name the title was, afterwards, in 1869, conveyed the farm to Peter Becker, and this bill was filed by Barbara Schneider, against Peter Becker, on July 24, 1883.

There is no direct evidence that any money of appellant went into the purchase of the farm in controversy. The most that appellant can say is, that she left her share of her father’s estate in Wendel’s hands, to be invested when he bought. The material evidence in support of the bill is chiefly of witnesses testifying to alleged declarations of appellee. The witness Mary Imhoff, who was the hired-girl of appellant, speaks of a conversation in 1874 she heard between appellant and appellee in Chicago, about her share in the farm on which he lived, and heard her ask him for her share, ($2750,) with interest, and he" said he didn’t have the money at the time, but the land was out there; and she speaks of another conversation of like import, in 1876. Julia Strausser, who was then a sewing girl for appellant, speaks of the same conversation that the former witness did, as occurring in 1874, and heard the same about appellant asking $2750 of appellee. These witnesses were testifying to what, occurred twelve or fourteen years before, when the latter witness was but thirteen years old, and both saying they had not talked with appellant about the matter until the day before. Bosina C. Eider testifies to a conversation in 1863 or 1864, in which appellee made appellant an offer for her share in this farm, saying he would give her $2750. “She said, well, you bring the money, and then the share will be yours, and then she laughed.” Lizzie Smith, the daughter of appellant, testifies substantially the same as the foregoing witnesses, relative to the offer of $2750 for appellant’s interest in the farm. This is substantially the strength of appellant’s case, as resting upon admissions of appellee.

Wendel and the mother had deceased before the bringing of this suit. Much of the testimony in the record is of declarations made by them, which was received subject to objection. The declarations of the mother, evidently, were not competent. Whether those of Wendel were, it is not material to consider, for if they be received, we would regard "them as bearing, in their preponderance, rather against than in favor of appellant. The only witness who had actual knowledge on the subject, was appellee, who did the negotiating for the purchase, and was present when the purchase of the farm was made and the purchase money paid. He testifies positively that no money of appellant went into the purchase, hut that all of the purchase money was furnished by Wendel, Lena and himself; and he contradicts all the testimony of appellant’s witnesses with respect to his declarations. Lena, one of the parties to the purchase, and who had all the means of knowledge that one could have who was not present and saw the purchase money paid, testifies positively that Wendel, Peter and herself furnished all of the purchase money for the farm. After having lived on the farm for many years with Wendel and Peter and her mother, and after getting married, she sold out her interest in the farm to Joseph, and when she comes to sell, she sells, not a one-fourth interest, but a one-third interest. Appellee and Lena do not concur with appellant in her statement that she left the money to be invested in any land, but say that appellant simply left the money in Wendel’s hands, not wishing to take it to Cincinnati. It was natural that Wendel, Peter and Lena, being practical farmers, and Peter unmarried and having lived some time in this country, should together buy a farm and go and live upon it with their mother, and carry it on together. Appellant, living in Cincinnati, and carrying on the millinery business there, would not be likely to wish to engage in farming in Cook county, in this State, or to invest in a farm there.

The point is made that the shares of Wendel, Peter and Lena, in their father’s estate, were not sufficient for the purchase of the farm, and that to make up the amount of $3360, (the purchase money,) appellant’s share was required, and it must, of necessity, have constituted a part of the purchase price. It appears by uncontradicted evidence, that Wendel and Lena had, besides their share in their father’s estate, about $1500, savings from then: upwards of twenty years of service in Germany, from the time of the death of the father to the year they came to America. Peter says he had some property and money besides his share. This would seem to make out sufficient of money which Wendel, Peter and Lena had for making the purchase, without there being occasion for the use of any of appellant’s money for the purpose. After leaving Sheboygan, appellant returned to Cincinnati, and did not appear in Cook county until some nine years afterwards. The testimony is, that about $500 a year profits was realized from the farm. If appellant’s money had been invested in this farm, and she was the owner of a one-fourth interest in it, it is natural there would have been, during these nine years, some communication in writing pertaining thereto,—that there would have been inquiries made, and letters to her having some reference to the matter; but not a line in writing, in any way referring to the subject, is shown in evidence.

It appears that appellant had large money transactions with her brother Wendel, and that she had in his hands a large amount in money. She had a settlement with him in 1876, and received a deed from him of two houses and lots in Chicago, for $7500 each, subject each to a mortgage of $2500, and of the east half of a certain ten acres of land near Chicago. This property was considered as one-half of the land received by Wendel in exchange for a mill property in Minnesota. At the time, appellant executed a release to Wendel. The release is lost. A disinterested witness who was present at the time, says the settlement was not confined to the mill property, but embraced money appellant had in Wendel’s hands, and is explicit in the statement that the release given was one in full of all claims and demands against Wendel. Appellant says the settlement related to the mill property they had owned together in Minnesota, and was confined thereto,—that the release did not embrace this land matter. This bill was not filed until after the death of Wendel and the mother, and was filed thirty years after the transaction of the purchase of the farm. There was an oral examination of the witnesses in the court below, and of course that court had a better opportunity than we have to judge of the credibility of witnesses.

We have not attempted to give, or to discuss in any detail, the voluminous evidence in this record. We have but referred to portions of it, stating some considerations naturally arising thereon. The whole testimony has been carefully considered, and we must content ourselves with stating further but our conclusion therefrom. Upon an examination of the entire evidence in the case, we can not say the decree is so clearly against the evidence as to require its reversal by a court of review, and it must therefore be affirmed.

Decree affirmed.


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    Elloa A. Marsh et al. v. James Scott.

      Filed at Ottawa May 9, 1888.

    1. Rescission of contract—fraudulent representations. A contract for the purchase of a patent right, induced by the false and fraudulent representations of the vendor, will be rescinded by a court of equity, and the parties restored to their original rights.
    2. Same—as to letters patent, incomplete at time of sale, but perfected afterwards. Where letters patent are issued without being signed by the Secretary of the Interior, and the patentee, as soon as the want of the signature is discovered, has the same signed, it would seem that a sale of the patent by him before discovery of the defect, will not be set aside on that ground alone.
    3. Patent right—absence of signature to letters patent. A so-called patent, not signed by the Secretary of the Interior, will not pass any title or interest to the patentee; yet if the latter is the author and owner of a useful invention, which was intended to be patented, he will have a valuable right, which he may, in equity, sell and assign to another.
    Appeal from the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.

      Messrs. King & Packard, for the appellants:
    Even if the patent was signed after the making of the contract, it was none the less valid as a good consideration therefor, such want of signature being properly supplied. Grant v. Raymond, 6 Pet. 241; Bell v. Hearne, 19 How. 262; Woodworth v. Hall, 1 W. & M. 255; United States v. Patterson, id. 305; Webster’s Patent Cases, 647, note.
    Representations as to the operation and utility of an invention, though untrue, will not justify a rescission of a contract for its sale. Kimball v. Bangs, 144 Mass. 321.
    Messrs. Millard & Smith, for the appellee:
    Appellee was induced to purchase a one-third interest in the alleged patent, by the false and fraudulent representations of appellants. The alleged patent was and is void, and therefore valueless.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a decree of the Superior Court of Cook county, setting aside a conveyance of certain lots made by James Scott, the appellee, to the appellants, Elloa A. Marsh and Minard Lafever, on the fifth day of May, 1881, on the ground of fraud and want of consideration.

It appears that on December 28, 1880, the United States issued a patent, No. 236,052, to Marsh, for an improvement “on steam-engine valve gear.” For some cause or other the supposed patent had not been signed by the Secretary of the Interior, and the omission seems not to have been discovered until a considerable time afterwards. Marsh, before such discovery, assigned one-half of the patent to Lafever, after which, and up to the time of appellee’s conveyance to Marsh and Lafever, the latter were handling the patent for the purpose of making something out of it, and trying to introduce it to the public. Among others, they called on appellee, and after considerable negotiations between them, they sold him a one-third interest in it, at $5000, and the entire interest in the improvement and invention outside of the United States for the additional sum of $300, making all together $5300, $500 of which was paid in cash, and the balance in real estate, including the two lots now in controversy. The decree directed a reconveyance of the property to appellee, and the refunding to him of the $500 cash payment, with legal interest thereon.

That the contract between the parties was induced by false and fraudulent representations on the part of appellants, we think is clearly established by the evidence, and is of itself sufficient to justify the decree, without reference to the specific grounds upon which the court below seems to have placed it, namely, the want of the signature of the Secretary of the Interior to the patent. It appears that when the defect in the patent in this respect was discovered, Marsh, without delay, procured the signature of the Secretary of the Interior to the patent, and thus remedied the objection. On the general principle that equity will treat things as done which were intended and ought to have been done, and adjust and settle the rights of the contending parties accordingly, it may be doubtful whether the contract should have been set aside for that reason alone, when it appeared, as it did, that the defect in the patent had been cured.'

It -is undoubtedly true, as shown by the authorities cited, that a so-called patent not signed by the Secretary of the Interior fails to pass any title or interest to the patentee; yet if the latter is the author and owner of a useful invention which was intended to be patented, he nevertheless has a valuable right, which he may, in equity, sell and assign to another. At least no reason is perceived why he might not do so. However this may be, we think the decree is warranted on the grounds we have already placed it, and it will therefore be affirmed.

Decree affirmed.