delivered the opinion of the court.
Plaintiff, bringing suit to recover $1,000 theretofore paid to defendant as earnest money on a contract for the purchase of real estate in Chicago, upon trial had a verdict and judgment for that amount.
The contract was dated July 10, 1917, and the earnest money was to be applied on the purchase price of $30,000 when the sale was consummated. The contract provided that the plaintiff should pay $7,000 on or before 90 days from date and another $7,000 on or before 6 months thereafter, “provided a good and sufficient general warranty deed conveying to said purchaser a good and merchantable title to said premises, subject as aforesaid, shall then be ready for delivery.” Plaintiff was to give his note for the balance of the purchase price, $15,000, due on or befоre 3 years from date, interest 6 per cent, secured by a mortgage or trust deed on said premises.. It also provided that a certificate of title issued by the registrar of Cook county, or a cоmplete merchantable abstract of title brought down to date, or a merchantable guaranty title should be furnished by the vendor within a reasonable time. If an abstract was furnished^ plaintiff was to have 10 days after receiving the same to deliver to defendant a memorandum of objections, if any, to the title, and if any material defects were found in the title and so noted and not cured within 60 days after such notice, the contract should, at the purchaser’s option, become void and the earnest, money should be returned.
The premises contracted for were apparently designed for hospital purposes, and upon the execution of the contract plaintiff took possession and remained in possession for 2 weeks or less. No move seems to have been made by еither party towards carrying out the provisions of the contract until April 25, 1918, when plaintiff served upon defendant a written demand that defendant furnish plaintiff a certificate of title issued by the registrar of titles оf Cook county, or an abstract of title, or a guaranty policy, in accordance with the provisions of the contract. Defendant thereupon stated that the abstract was in Philadelphiа and it would take some time to get it, and if plaintiff was satisfied, defendant would furnish a title guaranty policy. This was agreed to and such a policy was ordered from the Chicago Title & Trust Company. On May 3 the Trust Comрany, following defendant’s instructions', delivered to the attorney for plaintiff its opinion upon the title, giving thirteen objections, among which were the lien of a trust deed to secure notes aggregating $21,000, claims against the estate of Rosa A. Benson, deceased, unpaid legacies in .this estate amounting to $35,000, proceedings to enforce a mechanic’s lien for $747.53, and the rights or claims of partiеs in possession. Plaintiff’s attorney communicated with defendant, calling attention to these objections, saying that plaintiff was ready, able and willing to consummate the deal by paying the sum provided by the contract to be paid whenever these objections were removed apd defendant ready to deliver the deed and guaranty policy. Correspondence passed between thе parties but no progress was made towards closing the matter. Defendant’s position was that he was entitled first to receive the $14,000 purchase money from plaintiff and with this clear up the balancе due on the prior mortgage and all other liens.
The contract imposed concurrent obligations on both parties who should act simultaneously in its performance. Neither party was obligated to do the first act or perform his part of the’ agreement before the other. Clark v. Weis,
Plaintiff, to sustain this action for the return of the earnest money, need only to show that he was ready, willing and able to perform on Ms part if the defendant was ready to perform on his. (Same cases.) To show this, plaintiff produced evidence that he had made arrangements for a loan of $14,000 to complete his payment as soon as the title was cleared. Defendant was informed as to the source of this money. Upon the trial and in argument defendant attempts to weaken this evidence; however, its sufficiency to show the readiness and ability of plaintiff was properly a question for the jury, and there is no good reason to disagree with its favorable conclusion for the plaintiff in this respect. Carter v. Webster,
Citations upon the requirements of a tender of an amount due are not in point. Proof of an offer of the actual cash or that the money is in the bank is not required in cases like this. Thе rule is as stated in Clark v. Weis,
“Some misapprehension or confusion appears to have arisen from the mode of expression used in the books in treating of the necessity of a tender or offer by the parties, as applicable to the case of mutual and concurrent promises. The word ‘tender’ as used in such a connection, does not mean the same Mnd of offer as when it is usеd in reference to the payment or offer to pay an ordinary debt due in money, where the money is offered to a creditor who is entitled to receive it, and nothing further remains to be done, and the transaction is completed and ended; but it only means a readiness and willingness, accompanied with an ability on the part of one of the parties, to do the acts which the agreement requires him to perform, provided the other will concurrently do the tMngs which he is required by it to do, and a notice by the former to the latter of such readiness. Such readiness, ability and notice are sufficient evidence of, and indeed imply, an offer or tender in the sense in wMch those terms are used in reference to the kind of agree-meats we are now considering. It is not an absolute, unconditional offer to do or transfer anything at all events, but it is, in its nature, conditional only, and dependent on, and to be performed only in case of, the readiness of the other party to perform his part of the agreement.”
Plaintiff having presented evidence sufficient to maintain his action, did defendant sufficiently prove his readiness and ability to perform his part of the contract? The jury concluded that he did not and we cannot say this conclusion was not justified by the evidence. Defendant claims that if lie had been paid $14,000 by plaintiff, he would have been able with this to pay off the balance due on the mortgage, $10,000, the mechanic’s lien claim amounting to $750, and the claims allowed against the estate of Eosa Benson and unpaid legacies; that the Chicago Title & Trust Coinpany agreed if the purсhase' money and the notes securing the deferred payments were deposited with it, it would issue a policy guaranteeing defendant’s title except as to the claims of parties in possessiоn, mechanics ’ liens not of record and special assessments and general taxes. The mortgage referred to was held by the Provident Life Insurance Company of Philadelphia, and it is quite evident thаt what defendant had in mind was an escrow agreement whereby plaintiff was to deposit $14,000 and defendant would open negotiations with the holder of the mortgage for its oancellation. While plaintiff might hаve consented to such a conditional escrow agreement, he was not obliged under his contract to deposit the cash to await the outcome of defendant’s attempts to clear the title.
In addition to the prior incumbrance and claims there was another objection concerning which there is an entire absence of evidence as to defendant’s ability to remove, namely, the rights of parties in possession. It was proven that on or about August 7, which was before the first instalment on plaintiff’s contract fell due, defendant sold, or had entered into a contract tо sell, the premises to another party, receiving $500 as earnest money, and had put this party in possession, who expended some $5,000 in improving the building on the premises. There was no assurance given plaintiff as to what would be done with this party in possession except the vague and general statement by defendant that when the time came that would be attended to. Plaintiff was certainly not obliged tо put up his money to await the uncertain outcome of negotiations, possibly involving litigation, looking to the ouster of the parties in possession and the removal of any claims or equities they might have. Under these conditions the jury properly could find that the evidence failed to show readiness and ability on the part of defendant to perform his contractual obligations.
It has been held in many cases that a vendor cannot force a purchaser to pay his money and receive a defective title. Lancaster v. Roberts,
Criticism is made of an instruction given to the jury, but its errors, if any, do not require a reversal. Even if the instruction be construed as submitting to the jury the question of title to the property and the effect of the guaranty policy, this would be harmless error as therе is really no dispute on these points. American Home Circle v. Eggers,
Criticism as to instructions and upon the rulings upon evidence, although partially justified, are not sufficient to set- aside a judgment based upon the only verdict which the jury would have been warranted in returning under the evidence. Pennsylvania Coal Co. v. Kelly,
Affirmed.
Holdom, P. J. and Dever, J., concur.