Emerson v. Fleming

246 Ill. 353 | Ill. | 1910

Mr. Justice Hand

delivered the opinion of the court:

It is first contended that the contract is unconscionable, oppressive and inequitable and its execution was obtained by fraud and misrepresentation, and that for those reasons a-court of equity should not decree the specific performance thereof. We have read the evidence found in this record and have been unable to discover anything unconscionable, oppressive or inequitable in the contract, and we do not think the execution of the contract is shown to have been obtained by fraud and misrepresentation. It is clear the appellant, who is an educated woman, a school teacher by profession and of mature years, fully understood she was selling her property and that she was to receive therefor $5000 net, and that is what the contract provides she shall receive. From a perusal of the evidence we are forced to the conclusion that the appellant sought to recede from the sale on the ground that other persons who owned property in the immediate vicinity of the location of her lot had within a short time, probably within a few days after she had agreed to sell her lot, been offered from $1000 to $3000 more for property no more desirable or more valuable than the property of appellant; that upon learning that other holders of property in that vicinity had been offered more for their property than she was to receive for hers, she became immediately impressed with the view that she had sold her property for less than it was worth and for that reason she was not morally bound, at least, to carry out her contract of sale. The evidence does not show that any misrepresentations were made to the appellant whereby she was induced to execute said contract or that she was misled or deceived by Robertson. He informed her she could get $5000 for her property and that she would have to pay commissions and furnish an abstract. She declined to pay commissions or to furnish an abstract other than such abstract as she then had. Robertson thereupon modified the memorandum of agreement to meet her view, and upon Baird seeing the contract, as the agent of Emerson, acceded to its terms, whereupon the contract was delivered to him by Robertson and he delivered to Robertson a check for $200 as earnest money, and the appellant was immediately informed by Robertson that the sale had been or would be closed, and she seemed satisfied and said “all right.” Within a few days, however, her mother was offered $6000 for her lot or was given to understand she could get that amount for it, and it was rumored that a cousin had been offered $8000 for her lot, and thereupon the appellant immediately determined, apparently, to refuse to carry out her contract. Much evidence was taken upon the question of the value of this property, and while it seems to have assumed a speculative form by reason of some change in the locality, which the record does not disclose, about the time the appellant sold her lot, it clearly appears from the evidence that the appellant received, at the time she closed the contract with Robertson, an amount which was fully as great as any property up to that time in that neighborhood, similarly situated to the property of appellant, had been sold for. Our conclusion is that the contract for the sale of said real estate was understanding^ signed by the appellant ; that it was not entered into by reason of any fraud practiced upon the appéllant, and that the court would not have been justified in declining to decree a specific performance of the contract by reason of the fact that the amount agreed to be paid for the premises was inadequate.

It is next contended that the appellee failed to comply with the terms of the contract. He had sixty days in which to perform, and if he failed to perform within that time he was to forfeit the earnest money, which was held by Murphy & Campbell. On the 8th of November he called, by his agent, Baird, upon the appellant and offered her $4800 in' cash and demanded a deed. She said she was entitled to $5000. He thereupon informed her that $200 of the $5000 had been paid to and was held by Murphy & Campbell, and he asked her if she would convey on the payment to her of $5000. She said she would not state what she would do until she had seen her lawyer. On September 11, and ag'ain on September 12, Baird called at the public school building where appellant was a teacher, and at her home, and then had $5000 with him, a deed ready for execution and a notary public to take the acknowledgment. He was, however, unable to find the appellant. He found her on the 14th of November and offered to pay her $5000 and asked her to make a deed, when she said it was too late. We think the appellee made every reasonable effort to carry out the terms of the contract and to pay to the appellant the purchase money within the terms of the contract. It has been said by this court, in cases of this character, that the main question is, did the' complainant make a conscientious effort on his part to comply honestly with the contract? (Kimball v. Tooke, 70 Ill. 553; Monson v. Bragdon, 159 id. 61; Ebert v. Arends, 190 id. 221.) Our conclusion is that the trial court properly held that the appellee made a conscientious effort on his part to comply honestly with the contract, and that he should not be defeated in this suit because he failed to find the appellant before the 14th day of November, 1907, under the circumstances disclosed by this record.

It is further contended that the appellant should have been permitted to inquire before the master as to the identity of the appellee and as to the authority of Baird to prosecute this suit. There is an intimation in the brief of appellant’s counsel that the complainant is a fictitious person and that Baird is prosecuting' this suit without authority, and the counsel for the appellant sought to raise these questions upon the cross-examination of the witnesses for the complainant on the hearing before the master. The suit was commenced in the name of the appellee, and the appellee was represented before the master, and upon the trial, by counsel. Had the appellant desired to question the existence of the appellee or the authority of counsel to represent the appellee, this should have been done otherwise than by the cross-examination of the witnesses called by the appellee upon the merits of his case. The only ruling that the record shows was made by the master upon the questions thus sought to be raised was, that it was not proper to inquire about those subjects on cross-examination,—that is, that the subject sought to be inquired of by the witnesses for the complainant was not germane to their original examination, and was not, therefore, proper cross-examination, and the appellant was for that reason not permitted to examine the witnesses called by the appellee upon the subject of the identity of the appellee or the authority of Baird to represent appellee. The ruling of the master obviously was correct, and the trial. court did not err in overruling the exception of the appellant to that ruling of the master.

It is finally insisted that the court erred in requiring the appellant to pay $25 per month to the appellee as rent from November 14, 1907, on said premises, and in authorizing that amount to be deducted from the $5000 purchase money which was on that day deposited in the bank by the appellee for the benefit of the appellant but which subsequently was deposited with the master. The $5000 was by the action of the appellant tied up in the hands of the bank or in the hands of -the master', and did not, by reason of that fact, produce any interest subsequent to November 14, 1907, and while the money was thus idle the appellant was in possession of the property and was receiving the rent therefor. It was- therefore not inequitable that the appellant should be required to account to the appellee for the rent received by her from the property, less the taxes paid by her, which was the decree entered by the court.

Finding no reversible error in this record the decree of the circuit court will be affirmed.

Dgcrgg .