163 Ill. 216 | Ill. | 1896
delivered the opinion of the court:
Appellant did not comply with his agreement and pay Mary Hunt §600, but retained the share of David P. in that part of the estate not divided, neither paying it to the latter nor to George W. Griffin, the appellee. In this he was in default in failing to comply with his contract. The tendering the deed to appellee by appellant conveying this land in accordance with the agreement for the partition, and at the same time tendering a note secured by a mortgage, which was declined by appellee, did not constitute a full performance of the contract on the part of the appellant. He owed the duty of performing, or offering to perform, his contract fully before the vendor would be in default. The land which was the subject of the proposed conveyance was inclosed with other lands of the appellant, and he exercised certain acts of ownership over it by cutting brush, etc., and it does not appear the vendor exercised any control over the land after the execution of this contract. It does not appear that appellant ever offered to comply with his agreement by paying Mary Hunt §600 or any other sum on this contract. He had a sum amounting to §254.04 in his hands. which he had guaranteed should be $400, to be used for that purpose. Whilst he was in default as to this part of his contract he could not rescind the agreement for a failure on the part of the appellee to comply with another part of the agreement. Whilst the agreement as to the purchase and sale of the land was in writing, and did not name the guaranty of the amount the shares should be, nor the agreement of David F., nor that out of these sums the appellant should pay Mrs. Hunt the sum of $600, yet the several contracts made one contract, as the full agreement for which George W. assented to the partition and division of the estate. Here were three distinct contracts, one of which was in writing. The other two constituted each separate, distinct contracts. It is not a case of a part of a contract existing in writing and a part by parol, but a case where three contracts constitute one consideration for another contract. Where a contract is reduced to writing it cannot be varied by parol. Nor can part of a single contract exist partly in writing and partly by parol, but there may be several contracts, some in writing and others in parol, which may altogether be the consideration of another separate and independent contract. Bradshaw v. Combs, 102 Ill. 428.
The default of appellant in failing to tender a sufficient deed from the heirs and failing to pay Mrs. Hunt the $600 prevented his right to declare a rescission of the contract as to the land. George W. had complied with his agreement in the execution of deeds to the heirs to effect the partition, and had parted with his interest in the land. The appellant would have no right to rescind his agreement until he had, as a condition precedent, strictly performed all he was to do. (Wallace v. McLaughlin, 57 Ill. 53; Hunt v. Smith, 139 id. 296.) The consideration for all the promises of the appellant was done and performed by appellee, who conveyed his interest in lands and consented to the paying to others of a large sum of money in which he believed he had an interest. He was to be compensated by the compliance on the part of the appellant and David F. with their contracts. David F. authorized the payment of his distributive share, as guaranteed by appellant, to Mrs. Hunt for the benefit of appellee. David F. has never received that money, and it has been retained by appellant. The appellant owed the duty of complying with his several contracts, and a court of equity has jurisdiction to decree performance of those contracts and to enforce a vendor’s lien, and, having jurisdiction for the purpose of decreeing a vendor’s lien, will retain that jurisdiction for the purpose of determining and stating the account between the parties and giving relief by a settlement of the whole matter.
By the terms of the written agreement the note to be secured by mortgage was to be paid January 1, 1892, with interest at six per cent from January 1,1890. The bill in this case was filed so early in 1893 that laches cannot be imputed.
It is insisted in the argument in behalf of appellant that appellee contested appellant’s reports as administrator, and caused the expenditures of large sums of money for counsel fees, costs, etc., and that this should release appellant from these contracts. It nowhere appears in evidence that appellee waived any right to so contest the administrator’s report, and exercising his right to so except thereto was a violation of no contract on his part.
Inasmuch as the deed was not tendered by appellant to appellee until after the filing of this bill, the chancellor properly awarded costs against appellant.
We find no error in the record and the decree is affirmed.
Decree affirmed.
