| Ill. | May 9, 1888
delivered the opinion of the Court:
The defence set up in this case is, that the contract of January 19, 1883, was not a complete contract, and that not being complete, it is as no contract, and so, that that alleged agreement can not be specifically enforced; that the only complete contract there could have been in the case would have been that of February 10, 1883, had the papers of that date all been executed and delivered, but as they were not, the. attempted contract of February 10 was not completed, and hence there is no contract whatever to be specifically performed.
It would seem from the evidence, that the will of Alexis Hall, made on December 7, 1881, had come to the knowledge of his children, and had created a family dissatisfaction, from its giving to Eugene the larger part of the estate, and its being executed under the circumstances it was, and that threats had been made by the other children that they would contest the will. To reconcile this family difference the writing of November, 1882, appears to have been made and signed by all the children, whereby they agreed that there should be an .equal distribution of their father’s estate between his four surviving children, when the time for such distribution should come. It seems that another cause of difficulty had sprung up between Eugene and his sister Matilda and her husband, from a long standing note for $2300, which had been given by the two latter to Eugene, and was unpaid, and for which the latter had taken collateral securities, which had failed to be collected, from the negligence of Eugene, as was contended. This additional difficulty was amicably composed by these brothers and sisters by their all generously sharing equally among them and the widow the burden of this Plummer indebtedness, and soon after the death of Alexis Hall they came together and executed this second agreement of January 19, 1883. By this agreement all the four children and the widow agree to settle the demands of Eugene on Matilda Plummer and her husband by each bearing one-fifth part of the Plummer indebtedness, and they renew their former agreement of November previous, to set aside the will of Alexis Hall, and that there should be a distribution of his estate as intestate estate. This agreement is signed by the widow, who did not sign the November agreement. This is an agreement of a most praiseworthy kind,— an amicable arrangement amongst brothers and sisters of difficulties between them, which would doubtless have been carried out to the entire satisfaction of them all but for the sudden death of Eugene. It is an agreement which a court of equity will look upon favorably, and readily interpose for its specific performance, unless there be some insuperable bar to prevent.
The written agreement of January 19 is plain, clear and full. It bears upon its face evidence of ample consideration, and is of itself a complete contract. That this would be an obligatory contract, although it was understood at the time that there should thereafter be a more formal instrument drawn up and executed to express the parties’ agreement, is abundantly established by the authorities. (Fowle v. Freeman, 9 Ves. 351; Chinnock v. Marchioness of Ely, 4 DeG. J. & S. 638, (69 Eng. Ch.); Pratt v. H. R. Co. 21 N.Y. 305" date_filed="1860-03-05" court="NY" case_name="Pratt v. . Hudson River Railroad Company">21 N. Y. 305; Wharton v. Stoutenburgh, 35 N. J. Eq. 266.) All there is that can be urged against the completeness of this written contract of January 19, is that it omits to state one alleged term of the contract which was then made, viz., that Eugene was to have the home farm at an appraisal to be fixed by appraisers. This is an independent matter, separate and distinct from the two subjects of agreement named in the writing,—the Plummer indebtedness and the setting aside of the will. The bill does not ask to have performed a contract resting partly in a writing and partly in parol. It does not depend upon or seek anything whatever respecting the alleged parol part of the contract, but it is the defendants who are placing reliance upon this parol part of the contract, setting it up in defence, and in defeat of the performance of the contract in writing. If the defendants would not have the enjoyment of the parol part of the contract, and so not have the benefit of what they contracted for, there would be some equity in such a defence. The heirs of Eugene allege against the performance of this written contract, that he was to have the home farm, and that this is not expressed in the writing. But if he does get the home farm, and the other children convey their interest in it to him or his heirs, there would seem to be no equity in such a defence of the mere omission of the writing to say that Eugene was to have the home farm at a price to be fixed by appraisers. And just such is the case presented here. Two of the children, Stephen A. and Matilda Plummer, have executed agreements for conveyance to Eugene of their interest in the home farm. The other of the three children, Mrs. Summers, is ready and willing, and offers by the bill, to make a like agreement for conveyance of her interest in the home farm,—so that the defendants do or will, under the offer of the bill, get the entire benefit of the parol part of the contract. There is no equity, then, in the defence which is set up, that this parol part of the contract was not expressed in the writing of January 19, and we think the authorities establish that such a defence is not sustainable where the defendant gets secured to him all the benefit of the parol portion of the contract.
In London and Birmingham Railway Co. v. Winter, 1 Craig & Phill. 57, (18 Eng. Ch.) a bill by the company for the specific performance of a written contract for the purchase of real estate, where there had been a subsequent parol agreement that the company should also pay for timber on the land, and for certain expenses, performance was decreed subject to the parol variation, and Lord Chancellor Cottenham said: “This is not a case within the meaning of those decisions in which the court has said that it will not specifically perform the contract with a variation. If the court finds a written contract has been entered into, and the plaintiff says, ‘That was agreed upon, but then there were certain other terms added, or certain variations made,’ the court holds that in such a ease the contract is not in the writing, but in the terms which are verbally stated to have been the agreement between the parties, and therefore refuses specifically to perform such an agreement. On the other hand, it is quite competent for the defendant to set up a variation from the written contract, and it will depend upon the particular circumstances of each case whether that is to defeat the plaintiff’s title to have a specific performance, or whether the court will perform the contract, taking care that the subject matter of this parol agreement or understanding is also carried into effect, so that all parties may have the benefit of what they contracted for.” And see Robinson v. Page, 3 Russ. 114, (3 Eng. Ch.); Price v. Dyer, 17 Ves. 357.
In 3 Parsons on Contracts, (5th ed.) 389, the author says: “It is a principle of equity jurisprudence that parol evidence is admissible to rebut, but not to raise an equity; and this principle or rule gives rise here to an important distinction. Although to resist a specific performance a defendant may show by parol that the written document does not fully represent the contract between the parties, and thus defeat the bill or compel the plaintiff to accept a performance with a variation, yet a plaintiff can not have a decree for a specific performance of a written contract with a variation upon parol evidence.”
In Park v. Johnson, 4 Allen, 259, after a review of the English cases upon the subject, the'court say: “The weight of authority seems clearly with the plaintiff on this point, (of having specific performance where ready to take the written agreement and fully to perform the omitted stipulation,) and while the court would refuse to give their aid in compelling the literal execution of a written contract which does not contain the whole agreement, they allow the objection to operate no farther than to require the party seeking the aid of the court to modify the written contract so as to embrace all the stipulations that are alleged to have been omitted or subsequently varied.”
When Mr. Aldrich met the parties, on February 10, he brought with him five papers, namely, (1) the agreement between the four children to set aside the will; (2) an agreement between the widow and children to settle the Plummer indebtedness ; (3) a renunciation of the will by the widow; (4) an agreement between Stephen A. Hall and Eugene A. Hall for a conveyance by the former to the latter of an undivided one-fourth of the Alexis Hall farm; (5) a like agreement between Mrs. Plummer and Eugene A. for conveyance of a like undivided fourth. The first three were on that day executed by all the parties there present, and delivered to Mr. Aldrich,—Mrs. Summers being the only party absent. The first three papers contained essentially nothing more than the agreement of January 19, amplified by legal verbiage, and the signing of them by Mrs. Summers was of no moment, as she had signed the 19th of January agreement. The other two agreements for conveyances by Stephen A. and Mrs. Plummer were also signed by them, respectively, on February 10. A like agreement for a conveyance by Mrs. Summers, who was absent, was thereafter to be executed by her, which she has ever been ready and willing, and offers by the bill, to execute. Whatever of incompleteness there may be in these papers of February 10, or any one of them, has no bearing, as we conceive, upon the present bill. It does not call in aid that transaction, and in no way depends upon it. The bill is rested wholly upon the agreement of January 19, 1883, and asks the specific performance of that agreement. As the specific performance is only asked subject to the defendants having all the benefit of the alleged parol part of the agreement which is claimed to have been made, we are of opinion the complainants are entitled to have the agreement of January 19, 1883, specifically performed.
It is claimed that the defendant Marion O. Hall has a dower interest in the land. Whether that be so or not is no objection to a decree of specific performance against the heirs of Eugene A. Hall. Any decree of conveyance might be made subject to whatever right of dower, if any, which Marion O. Hall may have in the land.
The decree will be reversed, and the cause remanded for further proceedings in conformity with this opinion.
Decree reversed.