56 Ill. 81 | Ill. | 1870
delivered the opinion of the Court:
At the time of the mating and maturity of the Iglehart notes m question, no days of- grace were allowable by the laws of this State, upon promissory notes. Rees v. Mitchell, 41 Ill. 365. Consequently, the note dated the 24th March, 1856, and payable three months after date, became due on the 24th of . June. By the provisions of the contract in reference to forfeiture, that right accrued upon a default continuing three days after any note became due. On the 28th of June, Cobb, who acted as the general agent of appellée Gibson in the premises, and all of whose acts and doings were approved by him, transferred by indorsement, in the name of his principal, the note due in eight months from the 24th of March, 1856, to Robinson, for a valuable consideration, the latter becoming, so far as this record shows, a tona fide holder thereof. This act of dealing with the purchase, if done with knowledge of the fact of default in the payment of the three months’ note, would amount to a waiver of any right of forfeiture of the contract, for such default.
Gibson was chargeable with such knowledge. ' The notes were made specifically payable at the office of E. I. Tinkham & Co., Chicago'; and besides, Cobb had put them, before maturity, into the hands of that firm for collection. They, therefore, were the agents of Gibson, and must have known of the default. Cobb was also living and doing business in Chicago, and evidently keeping close watch in the premises.
Default was also made, under the same circumstances, as to the four months’ note, due July 24, 1856; but the five months’ note, due at the same time in August, was paid by Iglehart on the 27th of that month, and payment received by Gibson’s agents.
But, notwithstanding all these circumstances, Gibson, by his agent, on the 27th August, 1856, repudiated the contract, and declared it forfeited.
By the transfer of the eight months’ note to a lona fióle holder, as above stated, Gibson was debarred the right of rescinding the contract either under the power given in it, or otherwise, because he had put it out of his power to termigate it as to the whole extent to which it remained executory on the part of the vendee. Murphy v. Lockwood, 21 Ill. 615; Chrisman v. Miller, id. 236.
The six months’ note, due on the 24th September, 1856, was, notwithstanding the previous acts, presented at the office of Tinkham & Co., for payment, at the time of its maturity, and payment demanded, but which was refused. Then on the 27th of the same month it was presented to Clayton, and payment demanded, which was expressly refused, and on that day the contract was again repudiated on behalf of Gibson, and declaration of forfeiture again made. In each case the declaration of forfeiture was made in writing, in a formal manner, and served personally upon Clayton. Dnder these circumstances, Gibson had no right to repudiate the contract, the act was wrongful and put him in fault, so that the vendee was at liberty to treat it as rescinded, stop short in its performance, and when he paid the note assigned to Bobinson, the payment of which he could not successfully resist, could sue the vendor, in an action at law, and recover back all that he had paid under it.
And this, it seems, was the remedy resorted to, for, after the assignment by Clayton, in 1859, of his interest in the contract to appellant, the latter, on the 26th July, 1861, commenced an action of assumpsit in the name of the former, in the Superior Court of Chicago, against Gibson, to recover back the money paid, but no steps were ever taken in the cause, although personal service was had upon Gibson, biit it was permitted to remain thus pending, until the 30th of January, 1869, when, after a period of over seven years and a half, it was voluntarily dismissed by the plaintiff in interest, and this bill filed for specific performance, which is resisted upon two principal grounds: First, that appellant does not, by his bill, attempt to excuse the non-performance of the contract by the vendee, in essential particulars. Secondly, long lapse of time or gross laches unexplained.
It is conceded that default was made in the payment of the Iglehart notes, due, respectively, in three, four, six and seven months from date, and in the payment of the Vail notes, due the 16th September, 1856; the payment of all which, at the times they respectively came due, was a condition precedent to the execution of a conveyance by the vendor, and that time was of the essence of the contract.
It is not required of this court to say what would constitute a sufficient excuse for these defaults, because none is attempted to be set up, except the mere fact of the payment of the last note, due in eight months from date. The payment of that note was to a bona fide holder, not connected with the contract. The transfer of it on the 28th of June, as we have seen, would debar the vendor of the right of rescinding the contract, but it was neither an excuse for, nor waiver of, the subsequent defaults, as to the notes due in six and seven months, or the Vail notes, due the 16th September. Hot an excuse, because the assignment of the note to Bobinson in nowise prevented, interfered with, or embarrassed the vendee in the performance of his contract. It was not a breach of the contract on the part of the vendor. The notes were made negotiable, and he had a legal right to negotiate them, and the only consequence was, that it debarred him of exercising another right, the proper exercise of which was dependent upon his ability and willingness to surrender up all unpaid notes to the vendee. It was no waiver of the defaults intervening the transfer and payment to Bobinson. The transfer itself could be no waiver, because there was then no default, and of course, no knowledge that the defaults would happen. The receipt of the money upon it by Bobinson could have no such effect, because he was a stranger to the contract.
Waiver is the relinquishment or refusal to accept of a right. Bobinson, as the holder of the note, was vested with no right under the contract, and could therefore relinquish none. The transfer of the note by Gibson was, as to him, a payment of it at that time. Suppose Gibson had, at the date of the transfer, proposed to Iglehart to receive the then present worth of t,he note, and the latter had paid it; would it be contended that such payment was a waiver of all defaults occurring between that time and that of the maturity of the note ?
We have seen by the proofs that a formal declaration of forfeiture was made on the 27th of August, which was wrongful and would authorize the vendee to treat the contract as rescinded and recover back the amount paid under it. Did the vendee not make this election ? If he intended to hold the contract as subsisting, and claim specific performance of it, he should have paid, or tendered, the amount due on the Vail notes, September 16, 1856, and upon the Iglehart note due on the 24th same month. By making default in these payments, and letting the property be sold on the Vail mortgage, without showing it to be the result of fraud, accident or mistake,- he must be presumed to have acquiesced in the repudiation of the contract by the vendor. Iglehart testifies to an ample ability on his part to pay. He says the non-payment of the Yail notes was an oversight. But Ogden, a disinterested witness, says, that Iglehart knew the notes in his hands were coming due, and that a sale would be made if they were not paid; that he promised to give his attention to it but he did not. Then the vendee’s attention was directly called to the Iglehart note, due on the 24th September, 1856, by a demand made upon him on the 27th, and with ample ability to pay he positively refused to do so. What other inference can be drawn, in the absence of any explanation, than that they had elected to treat the contract as at an end, especially when we find that suit was afterward commenced to recover back the purchase money paid ? Herrington v. Hubbard, 1 Scam. 569. From the frame of the bill, appellant seems to have supposed that the vendee could refuse to pay at his discretion, if he only paid the last note, and a payment of that, though to a party other than the vendor, would give him the right to have specific performance of his contract; because, the only allegations of the bill as to performance by the vendee or appellant are, that the cash payment of $1,266.66 was made at the time of executing the agreement, and that afterward, the first, second, fifth and eighth of the notes of Iglehart, mentioned in the agreement, were paid. “The last of which said notes, dated March 24,1856, and payable eight months from date, was duly paid at maturity, to wit, on the 27th day of November, 1856.” It is not alleged that it was paid to Gibson, nor is any thing concerning the transfer of it to Bobinson, or the repudiation of the contract on the 27th of August by the vendor, and no excuse is pretended to be set up for the non-payment of the Vail notes, or any of the other four Iglehart notes. Enough of the contract is set out to show that time was of the essence of it.
“No rule,” said this court, “is better settled than that a party can not compel specific performance of a contract in a com! of equity, unless he shows that he himself has specifically performed, or can justly account for the reason of his non-performance.” Scott v. Shephard, 3 Gilm. 483; Heckard v. Sayre, 34 Ill. 142; Stow v. Russell et al., 36 id. 18; Supervisors v. Henneberry, 41 id. 180.
“ In general, it may be stated, that to entitle a party to specific performance he must show that he has been in no default in not having performed the agreement, and that he has taken all necessary steps toward the performance on his part. If he has been guilty of gross laches, or if he applies for relief after a long lapse of time, unexplained by equitable circumstances, his bill will be dismissed.” 2 Story’s Eq. Jur., § 771.
Here the bill shows upon its face that the party seeking specific performance has been in default, and which he does not attempt to account for.
He applies for relief after a long lapse of time ■—■ upwards of twelve years. Is this delay explained by equitable circumstances ? If not, appellant has been guilty of gross laches.
The entire basis of the explanation is, that Gibson, by stating in his letter of the 24th July, 1857, in reply to the Iglehart-Olayton letter of the 8th of that month, that he then had no claim or interest in the property, misled appellant and Clayton. But, the first question is, was Gibson under any duty whatever to make disclosure as to his interest ? It was not his fault that the property had been sold under the mortgage, but the fault of appellant and Clayton. There is no pretense that there was any fraud or abuse of the power in making the sale. Gibson, therefore, had a perfect right to obtain an equitable or any other interest in the property, and hold it in any manner he pleased, and if he was under no obligation to make disclosure of his interest before, certainly it can not be pretended by anybody not blinded by the pardonable infirmities of paternity toward offspring, that the letter of July 8 imposed any; for, a more uncandid communication, or one fraught with more unreasonable claims, can seldom be found in the records of human affairs.
But Iglehart testifies, that M. D. Ogden, about the last of November, 1856, called his attention to the advertisement and sale, and that he found that Cobb virtually paid the money and did all the bnsiness, but had the property struck off to Bobbins, Gibson still having an interest in the property to the extent of witness’ four unpaid notes and his agreement; witness did not believe this sale Iona fide or binding.
. If he knew, in November, 1856, that Cobb virtually paid the money, but the property was placed nominally in Robbins’ name, and inferred from facts within his own knowledge, that Gibson had an interest, and that the sale was not hona fide or valid, then is it reasonable or probable that the answer Gibson made to the provoking claims and pretensions of appellant’s letter of the 8th of July could have had any tendency whatever to mislead appellant or improperly shape his course ? He says he was led by it to bring the action at law in 1861. If so, he was induced to resort to his proper remedy, which should, under the circumstances of this case, have been pursued with diligence.
The bill in this case fails to state a case for specific performance, because it fails to excuse defaults on the part of appellant, apparent upon the face of it. The case made by the proof is different from that attempted to be stated in the bill. The delay in applying for relief is unexplained by equitable circumstances'. For these reasons we are of opinion that appellant has not shown himself entitled to specific performance, as against Gibson, and, as a matter of course, he is not, as against Miller, the purchaser of the property.
The decree of the court below is therefore affirmed.
Decree affirmed.
