delivered the opinion of the court:
On Aрril 13, 1918, Hector J. Bell, appellant, filed his bill in the superior court of Cook county for the specific performance of a contract for the exchange of farm property for city property, against appellees, Anders E. Anderson, William J. Reinhold and Charles M. Haft. Appellees filed their joint and several answer to the bill, denying substantially аll the allegations therein and setting up the Statute of Frauds. The cause was referred to the master in chancery, who found that no contract had been entered into by the parties and recommended that the bill be dismissed. Objections to the master’s report were overruled and argued as exceptions before the court. The chancellor overruled all the exceptions, confirmed the master’s report and dismissed the bill for want of equity.
On February 25, 1918, appellant, with George W. Stewart, a real estate broker of ^Chicago, went to the office of appellee Anderson, in said city, and there dictated to Anderson’s stenographer a writing purporting to be a contract betwеen appellant and Anderson for the exchange of' two farms owned by appellant, — one in Minnesota and the other in Iowa, — for an apartment building in Chicago .owned by Anderson, the title to which was in Reinhold for convenience. After the written instrument had been prepared with Anderson’s name as one of the parties it was changed by eliminating Anderson’s name and substituting therefor the name of Reinhold. Said writing was prepared by filling in the blanks on a regular Chicago real estate contract blank and appellant signed and acknowledged the same., The writing was left with Anderson to secure the signature of Reinhold thereto, after some conversation between the parties with reference to an exchange of the properties. Among other things, the writing provided that the Chicago property was to be conveyed to appellant subject to certain incumbrances, one of which was a third mortgage of $10,000, and that in addition to the farms appellant was to convey by bill of sale a considerable amount of personal prоperty located on the Minnesota farm. Neither Anderson nor Reinhold signed the written instrument and appellant never did see or talk with Reinhold. The writing further provided that each party should within a reasonable time furnish the other with a merchantable abstract of title to the property to be exchanged by him or a guaranty policy showing a good and suffiсient title, and that Reinhold was to have six days within which to make an investigation of the farms. On February 28, 1918, Stewart wrote appellant that reports received on the Minnesota farm were not satisfactory, and that Anderson would trade with appellant provided he would increase the third mortgage to $15,000, and asked appellant to wire his acceрtance of the proposition. On March 1 Stewart again wrote appellant that he was authorized to close up the deal and requested him to send his abstracts and get his papers ready to come to Chicago. On that date Reinhold signed a warranty deed to the Chicago property to appellant that in no way recited or mentioned any of the terms of the purported agreement. On March 9, 1918, appellant went to Chicago, and after talking with Anderson went to the office of appellee Haft and there signed and indorsed and left with Haft all instruments which would be required of him to complete the deal, consisting of a warranty deed to the farms to Reinhold, notes and a trust dеed to secure the same on the Chicago property, insurance policies on the farm buildings, a bill of sale to the personal property on the Minnesota farm and an assignment of rents on the Chicago property to secure certain payments. On March n, 1918, Reinhold and wife acknowledged the deed signed by him on March 1 and left it with Haft, who was acting as attorney for both parties, with a view to bring about and perfect the deal. Prior to ■March 9 appellant had sent abstracts of title to Anderson to the farms- in question and Anderson had turned them over to Neis Johnson, an attorney in Chicago, for examination. On March 12 Stewart returned the abstracts to the Minnesota farm to appellant with оbjections raised by Johnson. Anderson took various steps to have some nominal liens removed from the title'to his property and to bring his abstracts down to date. Negotiations between the parties apparently continued, and on March 27, 1918, while on his way to Winnipeg, Anderson stopped off and examined the Minnesota farm. On April 11 appellant wаs again in Chicago and was informed by Haft that Anderson would have nothing further to do with the deal and tendered back the papers to appellant, together with $61 in money left with Haft for revenue stamps. Appellant refused to accept the same and two days later brought this suit.
Appellant’s contention is that a definite oral agreement was reаched between him and Anderson for the .exchange of the properties on February 25, 1918, on condition that the farms, when investigated, should stand up to the representations made of them as to soil and value; that Anderson investigated the farms and found them not up to such standard and proposed to make the exchange provided the third mortgage on the property to be by him conveyed to appellant should be increased to $15,000, and that appellant accepted that proposition, and that all instruments executed by appellant were executed with a view of completing the exchange of properties. Appellees contend that no such oral cоntract was made; that the instruments in question were not executed in compliance with any contract; that appellant executed the instruments left' by him with Haft to save him the further trouble and expense of returning to Chicago in the event the deal should be completed; that after Anderson investigated and found the farms unsatisfactory he instructed Haft not to deliver the deed to appellant; that appellant is unable to perform his part of the agreement because he has sold a large part of the personal property on the Minnesota farm which he agreed to deliver to Anderson, and that the Statute of Frauds is a complete defense.
It is conceded by appellant that there was no agreement in writing for the exchange of the properties signed by either Anderson or Reinhold. The written instrument was not even amended to include the change in the terms in the amount of the third mortgage to be given by appellant to Anderson on the Chicago property, but it is insisted by appellant that there was a definite contraсt verbally entered into March 9 between him and Anderson, and that there has been a performance on his part sufficient to take the case out of the requirements of the Statute of Frauds. Upon the question whether or not there was an oral contract, after a careful consideration of the evidence we are of the oрinion that the finding of the master in chancery and of the court is supported by the evidence. Under our holding in Miltimore v. Ferry,
But if it should be conceded that there was an oral agreement for the exchange and conveyance of the real estate, definite and certain in all its terms, made between the parties, appellant has nоt shown such a performance or part performance of the agreement by himself or of Anderson as would entitle him to specific performance. In Illinois, to take a verbal contract out of the operation of the Statute of Frauds it is incumbent on the party seeking specific performance of a contract to exchange real estate to at least show the taking of possession by one of the parties of the property to be conveyed and also the doing of other acts in pursuance of the contract, as the expenditure of money in making valuable improvements by the person requesting such enforcement, and such acts must be definitе and referable exclusively to the contract. (Weir v. Weir,
There is another reason why appellant cannot maintain this suit. After filing his bill he sold a very large part of the personal property on the Minnesota farm, cоnsisting mainly of farm machinery, which he had obligated himself, as he contends, to convey by bill of sale to Anderson or Reinhold, along with the two farms, as the exchange value for Anderson’s Chicago property. Appellant’s answer to ■this defense is that he sold $2600 worth, of this property to pay the interest on the loan on the farm which had accrued and which Andеrson would have had to pay had he consummated the contract, as he ought to have done, and that he sold one of the bulls on the farm for-about $70, for the reason he had become dangerous and vicious and was in the habit of chasing and trying to injure persons going onto the premises. Conceding the truth of the answer of appellant to this defense it is not a sufficient defense. He should have either advanced the money to pay the accrued interest or allowed it to have gone by default. If the bull was a dangerous and vicious animal, likely to seriously injure unsuspecting persons coming near him, and was of such a character that he could not be safely confined, appellant would have been justified in disposing of him for beef or otherwise to the best advantage possible, for the reason that no one should be or could be legally required to- maintain such a dangerous nuisance. The sale of the other personal property, however, for the simple purpose of paying an accrued debt, is not a sufficient lеgal excuse for disposing of that property which he was under obligation to convey, unless he elected to do so upon the theory of affirming the contract and of only pursuing his remedy at law and thereby waiving any right he might have to enfqrce specific performance of the contract.
It is the positive rule that where two parties have entered into a contract for the sale of land and the sale has been completed, the party accepting the possession of the' land for the property conveyed cannot rescind the contract after he has conveyed any substantial portion of it. In order to rescind the contract he must keep himself at аll times ready and able to put the other party in statu quo by delivering to him the identical property so conveyed to him, or if he cannot do that he must resort to whatever remedy at law for damages, if any, he may have. (Stackpole v. Schmucker,
For the reasons aforesaid the decree of the superior court is affirmed.
Decree affirmed.