| Ill. | Oct 25, 1902
delivered the opinion of the court:
It is claimed by plaintiff in error that the declaration does not support the verdict of the jury, under the evidence. This contention is based on the theory of plaintiff in error that defendant in error on the trial waived all the counts of his declaration but the first. There was some talk between the counsel for defendant in error and the court on the trial, but we are satisfied from what was said, and from the subsequent acts of the parties in giving in evidence under the first three counts, that it was only the last count—the count in trover-—which was waived. This was evidently the view of the presiding judge as shown by his rulings on the trial.
It is next urged by plaintiff in error that the defendant in error is not entitled to a recovery on the basis of the agreed price of the lots, but that the true measure of damages is the difference between the agreed price and the fair market value at the. time Gray agreed to take and pay for the lots in question. This contention is not tenable. Meek sued on the contract, by which Gray agreed to pay the stipulated prices for the lots unsold at the expiration of the contract. When this contract was extended he again agreed to take the lots unsold at the expiration of the extension, and to pay the stipulated prices, and both contracts contained specific directions as to the application of moneys received towards paying for these lots to be taken by Gray.
It is also urged that there was no tender of a deed for these lots from Meek to Gray pleaded or proved. There was no tender pleaded, but no advantage was taken of this in apt time. The only proof in regard to a tender is the evidence of Meek that he offered Gray a deed for these lots, and the further offer he made in a letter to give him a deed and take a mortgage back. Nothing further was elicited in regard to the tender. No tender was necessary under the terms of the contract until the last payment became due, as Meek did not agree to make a conveyance until the lots were paid for. But demanding the whole amount due on these lots, he should have tendered a deed. A purchaser of property to be paid for in installments, where there is no time fixed for the delivery of the deed, is not entitled to receive his deed until the last payment is made; nor is a purchaser oblig'ed to part with his money before he receives the deed. (Duncan v. Charles, 4 Scam. 561; Weiss v. Binnian, 178 Ill. 241" date_filed="1899-02-17" court="Ill." case_name="Weiss v. Binnian">178 Ill. 241.) The lots were to be paid for, §5 down and monthly payments of not less than §2.50. The time for all payments by Gr,ay had elapsed when suit was brought The obligation to pay all but the last installment was absolute and unconditional. By neglecting to enforce payment ' on these installments as they became due, and by waiting until the last one became due and the time for making the conveyance had elapsed, the promise to pay the previous installments, once absolute and independent, did not become mutual and dependent. (Duncan v. Charles, supra; Sheeren v. Moses, 84 Ill. 448" date_filed="1877-01-15" court="Ill." case_name="Sheeren v. Moses">84 Ill. 448.) To remedy this error, respecting the failure to tender a deed, defendant in error offers to enter a remittitur in this court for the amount of the last payment on these lots, thirty-three in number, and interest thereon, namely $94.87.
Some criticism is made on two of the instructions, but as the jury found the damages to be the exact amount as shown by the statement of defendant in error, which was admitted by plaintiff! in error to be correct on the theory of the case maintained by defendant in error and which was admitted in evidence without objection, the plaintiff in error has not been injured thereby.
As the judgment below was too large by the amount of the last payment and interest thereon, to-wit, $94.87, and as the defendant in error remits that amount, the judgment will be affirmed as to the balance, except as to costs in the Appellate Court. The judgment for such costs will be reversed, and all costs incurred in this court up to the time of entering the remittitur will be taxed against the defendant in error.
Remittitur allowed and judgment affirmed.