166 Ill. 233 | Ill. | 1897
delivered the opinion of the court:
It seems clear to us that appellant has no case. It rests in the sound legal discretion of the court whether it will or not compel the specific performance of a contract. True, that discretion must be exercised according to the settled principles of equity, and not arbitrarily. (Allen v. Woodruff, 96 Ill. 11.) But to entitle the complainant to a decree the contract must be founded on a sufficient consideration, and must be reasonable, fair and just. Relief will not be granted unless it will subserve the ends of justice. (Chicago, Burlington and Quincy Railroad Co. v. Reno, 113 Ill. 39.) And in the case of unilateral contracts the courts will exercise their discretion with great care, and will view any delay of the purchaser with especial strictness. Estes v. Furlong, 59 Ill. 298; Harding v. Gibbs, 125 id. 85.
The contract in the case at bar was a mere option given by the Willigs to Wickersham to purchase the land in question within the time mentioned, and there was, before its acceptance, no consideration to support the contract. It was therefore within the power of the Willigs to withdraw this option at any time before their offer to sell was accepted. True, the contract was under seal, and purported to be based upon the nominal consideration of one dollar; but the evidence showed that there ..was in fact no consideration whatever, and it is well settled that in equity the real consideration may be inquired into, and the parties are not concluded by the recitals in the contract, though under seal. “Equity,” says Mr. Pomeroy, “will never enforce an executory agreement unless there was an actual valuable consideration, and, unlike the common law, it does not permit a seal to supply the place of a real consideration. Disregarding mere forms and looking at the reality, it requires an actual, valuable consideration as essential in any such agreement, and allows the want of it to be shown, notwithstanding the seal, in the enforcement of covenants, settlements and executory contracts of every description.” 3 Pomeroy's Eq. Jur. sec. 1293.
It is clearly proved in this case that after the expiration of one year,—the period which the Willigs claimed they understood the contract was to run,—and before its acceptance by Wickersham, the Willigs refused to perform but declared it to be at an end, and so notified Wickersham. After they had repudiated it and had declared to him that they would never perform it, he sent them his written acceptance, to which they paid no attention, and still later he assigned the contract to appellant. When, therefore, appellant received the contract it had no binding force. It could not have been enforced by Wickersham, and Crandall was in no better position than he. More than this, Crandall did not tender the purchase money necessary to be paid until several months after the time of payment as fixed by the contract, if it could be regarded as still in force. Appellees were not bound to hunt up the assignee of the contract and tender him a deed, but appellant should himself have offered to pay if be wished to enforce the contract. In Mix v. Balduc, 78 Ill. 215, it was held that where the purchaser delays the offer of payment for five months after the stipulated time without any excuse therefor, his right to call for a specific performance will thereby be precluded, unless the time stipulated for payment has been waived. There c? can be no pretense of a waiver here.
There were several mistakes and imperfections in the contract which we have not thought it necessary to notice.
The decree of the circuit court is affirmed.
Decree affirmed.
