HENRY KRABBENHOFT et al. Appellees, vs. THOMAS J. GOSSAU et al. Appellants.
No. 19025
Supreme Court of Illinois
December 20, 1929
No valid ordinance exists for this improvement, and the county court erred in refusing to dismiss the petition.
The judgment of the county court is reversed and the cause remanded to that court, with directions to dismiss the petition.
Reversed and remanded, with directions.
THOMAS J. YOUNG, and FRANCIS F. MORAN, for appellants.
RUDOLPH & ARTHUR E. FRANKENSTEIN, and FRIEND & SAMUELS, (RUDOLPH FRANKENSTEIN, of counsel,) for appellees.
Mr. COMMISSIONER EDMUNDS presented this opinion:
This is a proceeding by Henry Krabbenhoft and Fred C. Krabbenhoft against Thomas J. Gossau and John H. Gossau to reform a contract for the sale of real estate by correcting a mistake in the description of the property involved and for specific performance of the instrument as thus modified. From a decree granting the relief prayed the Gossaus have appealed.
On October 20, 1925, Henry and Fred C. Krabbenhoft entered into a written agreement with Thomas J. Gossau whereby the Krabbenhofts agreed to purchase and Gossau agreed to sell at a price of $9500 certain premises therein described. The contract recited that $1000 had been paid by the purchasers as earnest money, to be applied on the purchase price when the transaction was consummated; that the purchasers assumed a first mortgage of $1850 due on or about fourteen months and a second mortgage of $1000 due on or about four months; that the purchasers agreed to pay, “within ......... after the title had been examined and found good or accepted by him, * * * the further sum of five thousand six hundred and fifty and no/100 ($5650) dollars at the office of Elmer G. Olson on or before December 7, 1925, in Chicago, provided a good and sufficient statutory general warranty deed conveying to said purchaser a good and merchantable title to said premises (subject as aforesaid) shall then be ready for delivery;” and that “a certificate of title issued by the register of titles of Cook county, or complete merchantable abstract of title, or merchantable copy brought down to date hereof, or mer-
The amended bill of complaint is against Thomas J. Gossau and his brother, John H. Gossau. It sets out the general provisions of the above instrument and alleges that complainants have always been ready and willing to go ahead with the contract and comply with all its terms and provisions which are applicable to them; that upon divers days prior to December 7, 1925, they made demand upon Thomas J. Gossau for delivery of a merchantable abstract of title, guaranty policy or Torrens certificate, and from time to time advised Gossau that they were ready to consummate the transaction; that Gossau promised them from time to time that he would deliver the title papers; that Gossau did not live up to his obligation to deliver said papers; that on January 4, 1926, complainants again requested the title papers; that Gossau refused to deliver any
Thomas J. Gossau filed an answer and cross-bill. In his answer he denies substantially all of the material allegations of the amended bill, except that he admits the making
John H. Gossau filed an answer disclaiming knowledge of substantially all the material allegations of the bill and stating that the deed from his brother was a bona fide conveyance for valuable consideration.
The cause was heard by the chancellor, who entered a decree dismissing the cross-bill, finding substantially all the allegations made in the amended bill to be true, and ordering reformation and specific performance of the contract as prayed. Specific portions of the decree against which particular attack is directed will be referred to in subsequent portions of this opinion.
Appellants contend that the decree was improper, because under the law and the evidence appellees were in default themselves and in no position to invoke the aid of a court of chancery. In support of this argument they point out that the tender made by appellees was on January 5, 1926, whereas by the terms of the contract the deal was to be consummated on or before December 7, 1925. The reply of appellees to this contention is that appellants did not live up to the provision of the contract which required the furnishing, within a reasonable time, of appropriate evidence of title; that no such title papers were furnished although promised by appellants at various times up to the day before tender was actually made, and that under such circumstances appellees cannot be held to have been in default.
The furnishing of appropriate title papers by the vendor was here a condition precedent to any tender on the part of the vendees. A real estate contract containing the same language with respect to the vendor‘s obligation to provide evidence of title as the one now before us was under consideration in Neidhardt v. Frank, 325 Ill. 596, where this court said: “The furnishing of the indicia of title by defendant was a condition precedent to any act on complainant‘s part except the payment of the earnest money, which was paid. No demand for the same was necessary, and under the contract in this case, no indicia of title having been furnished, no written notice from complainant to defendant with reference to the taking of title was required.” In Mishelsky v. Carman, 320 Ill. 123, this court said: “It is contended that in order to secure specific performance of this contract it was necessary to tender the purchase price, and that this was not done. Under the contract the first thing to be done was the presentation of an abstract of title or guaranty policy. This was to be done by appellant or her attorney. As appellant refused to deliver the abstract or guaranty policy, it was not, under such circumstances, neces-
Appellants did not hand over to appellees the guaranty policy or any other title papers. The most they claim is that Thomas J. Gossau gave to Moore, Olson‘s agent, an order on another party for such a document, thereby making it available to appellees. Thomas J. Gossau testified that the contract involved was brought to his home by Moore, acting as salesman for Olson, and that after he signed it Moore asked him for the title papers; that he told Moore there was a guaranty policy held by Edwin J. Nelson; that Moore asked him for an order on Nelson for the policy, whereupon he wrote out such an order and gave it to Moore; that he heard nothing more about it for about thirty days, at which time he called up Moore to find out if the deal was going through, and continued to call up and go to see Moore at frequent intervals before December 7 relative to closing the deal, and that Moore gave him to understand that there was delay in getting the papers back from the Chicago Title and Trust Company. Gossau further testified that about a week and a half before the contract expired on December 7 he “got hold of Olson,” who told him that the deal would go through as soon as the purchasers could get their money free from other transactions. On the other hand, Moore denied that Gossau told him that Nelson had a guaranty policy, denied that Gossau gave him any order on Nelson for such a document, and denied that Gossau called him up or saw him later to inquire when the deal would be closed. Moore further testified that about two weeks after the contract was signed
The chancellor found that Thomas J. Gossau did not furnish any title papers as provided by the contract; that Gossau stated that he himself had ordered a guaranty policy from the Chicago Title and Trust Company and would deliver it as soon as it was completed, which would be in about ten days or two weeks; that from time to time thereafter demand was made upon Gossau for delivery of the policy, but Gossau stated it was not ready, promising to deliver it in a short time, and that such promises continued to January 4, 1926, at which time Gossau refused to furnish the policy and refused to make conveyance. The chancellor saw and heard the witnesses and was in a much better position than this court to form an opinion of the relative merit and weight of the testimony given. Where the chancellor makes a finding of fact from conflicting testimony heard by him, his finding will not be disturbed on review unless it is clearly against the weight of the evidence. (O‘Donnell v. Snowden & McSweeney Co. 318 Ill. 374; Mackie v. Schoenstadt, 307 id. 398; Sadler v. Drennan, 301 id. 335.) It cannot be said that the chancellor‘s finding on this issue is clearly against the weight of the evidence, and appellants’ contention that appellees were in default in not making tender by December 7, 1925, is therefore not well taken. In this connection the chancellor found that appellees were ready, able and willing to purchase the prem-
Appellants contend that the contract is void and unenforceable because Elmer G. Olson acted improperly as a dual agent. A similar contention was made in Adams v. Larson, 279 Ill. 268, where a sale of property was negotiated by one Finley, a real estate agent. Finley talked with the owner of the property regarding a possible sale and was later approached by a prospective purchaser who expressed interest in it. Finley took the matter up again with the owner and terms were finally agreed upon, only, however, after Finley had had several separate talks with the owner and the would-be purchaser. Finley drew the contract, embodying the terms agreed upon, and took it to the owner, who signed it. In an action brought for specific performance against the owner it was contended, as here, that Finley acted as agent for both parties without the knowledge or consent of the owner, and that therefore the owner could repudiate the contract. The court said: “When an agent is in the secret employment of the purchaser, a contract made between the principal and purchaser through the agent‘s efforts is not binding upon the principal, and that fact is a good defense to a bill for specific performance. (2 Mechem on Agency,---2d ed.--sec. 2138, and note; see, also, Fish v. Leser, 69 Ill. 394.) While Finley admitted that he represented both parties in causing this contract to be executed, it does not appear to have been in the sense that he was being paid a commission by each of them. It is clear there was no other agent in the matter and that both parties acted through him. Mrs. Larson fixed a price on her place, Finley communicated the offer to Adams, and Adams, after considerable negotiations, accepted her figure, and the contract was drawn on that basis. We cannot see anything in this record that shows that Finley acted in any way inconsistent with his duty toward the appellant or
In the present case Thomas J. Gossau testified that about October 20, 1925, Moore called him on the telephone and asked him if the property was for sale and inquired the price; that he told Moore it was owned by himself and his brother and was for sale for $10,000; that about twenty minutes later Moore called back and said according to their records in the office Thomas J. Gossau was the owner, and he told Moore “yes;” that Moore came over with a contract for $9000, which was rejected; that in about half an hour Moore telephoned again to find out if he was at home and then came back with the contract signed for $9500, and that after some delay, but on that same occasion, he signed it. Moore testified that Gossau had been coming into the office frequently for six or eight months; that about a month prior to October 20, 1925, Gossau said that he had the property in question for sale; that a listing card was made out bearing a price of $5500 cash; that he (Moore) submitted the property to the Krabbenhofts and they offered $9000; that he made out a contract in which that figure was named; that Gossau said this price would not do, because it had been necessary to pay some assessments; that he (Moore) talked with the Krabbenhofts again and they agreed to pay $9500; that he drew up a new contract in that amount and the next evening took it to Gossau, who signed it. By the terms of the contract itself Olson was named to hold the earnest money for the mutual benefit of the parties.
Appellants do not point out any specific act or circumstance which in itself is claimed to prove fraud or double-dealing, but, on the ground that all the circumstances surrounding the transaction “call up a reasonable suspicion of fraud,” ask the court to set aside the finding of the chancellor that the contract was fairly entered into and that no fraud was committed. In this connection counsel for appellants assert that in specific performance cases the burden is on the complainant to show that the transaction is free from all suspicion of fraud. This is not the rule recently announced by this court. Fraud will not be presumed in such cases but must be proved by the weight of the testimony. (Mackie v. Schoenstadt, supra; Woodrow v. Quaid, 292 Ill. 27.) We have considered the circumstances particularly pointed out by appellants, and are of the opinion that we are not warranted in interfering with the chancellor‘s finding in this regard. O‘Donnell v. Snowden & McSweeney Co. supra; Mackie v. Schoenstadt, supra; Sadler v. Drennan, supra.
Appellants contend that the chancellor erred in admitting evidence that the description of the property which was used in the contract was mistakenly erroneous; in admitting evidence that the intention of the parties was to sell and buy the property under the correct description given in the bill; in admitting evidence that the property thus correctly described was the only property owned by Thomas J. Gossau on Ashland avenue between Ninety-first and Ninety-second streets and in decreeing reformation accordingly. Counsel take the position that the description as given in the contract is “plain, clear and unambiguous and can only apply to the property described therein,” and that the terms cannot be varied by parol. If the record showed that there was property to which the description as given in the contract actually fitted and that Gossau owned it, counsel would stand on firmer ground in making such contention, but such is not the case. As it is, the argument thus made is fittingly
The correction of mistakes in written instruments, occurring by accident, fraud or otherwise, has been one of the acknowledged branches of equity jurisdiction from the earliest history of courts of chancery, and the party injured by the mistake has a right to demand correction upon furnishing satisfactory proof that it has been made. (Ballance v. Underhill, 3 Scam. 453; Andrews v. Gillespie, 47 N. Y. 487.) Courts of chancery have power to reform conveyances of land by correcting erroneous descriptions therein. (Lane v. Neifert, 240 Mich. 475, 215 N. W. 302; Radnor Building and Loan Ass‘n v. Scott, 277 Pa. 56,
In applying these principles it has been held proper to correct the mistake arising out of describing land as being in township 7 whereas it was really in township 6. (Willis v. Henderson, 4 Scam. 13.) In McCornack v. Sage, 87 Ill. 484, the contract described the premises as being twenty acres on the south end of the east half of the northeast quarter, etc., whereas the land intended was twenty acres on the south end of the northwest quarter. The court recognized the propriety of making the correction on proper showing of mistake. In Adams v. Henderson, 168 U. S. 573, the vendors owned a tract of land in a township numbered 5 and executed a written contract of sale which supposedly covered it. In the deed and mortgage, as well as in the contract, the land was by mistake of the scrivener described as being in township 6, in which township the vendors had no land. The court said: “By mistake the vendors conveyed land in another township which they did not intend to sell, to which they had no title and which the defendants had no thought of buying, and by mistake the
In the present case the contract called for lots 32 and 33 in block 11 on Ashland avenue between Ninety-first and Ninety-second streets, in a certain subdivision. The property actually owned by the vendor and which both sides had in mind was lots 32 and 33 in block 11 in a subdivision of another name, which was in fact on Ashland avenue between Ninety-first and Ninety-second streets, and which was, in fact, in the same section, township, range, county and State as set forth in the contract description. The chancellor was amply warranted, on authority as well as in principle, in correcting the description of the premises to conform to the intention of the parties to the instrument.
It is insisted, however, that there was no mistake from which a court of chancery is warranted in relieving here, because the scrivener was acting solely as appellees’ agent and they are bound by what he did. The chancellor found that Olson represented and was the agent for both purchasers and seller, that he prepared the contract for both sides, and that the mistake arose through his error. We are not warranted in disturbing this finding. O‘Donnell v. Snowden & McSweeney Co. supra; Mackie v. Schoenstadt, supra; Sadler v. Drennan, supra.
Appellants contend that the chancellor erred in entering a decree for specific performance and reformation against John H. Gossau; that he was not a party to the contract, and therefore it was unenforceable as to him for lack of mutuality; that while he knew about the contract, he knew only that it provided for consummation on December 7,
It is contended that the decree was in error because it does not follow the literal terms of the contract as to payment of taxes and assessments. By the terms of the contract the vendees were to take the property subject to taxes and assessments levied after 1924 and to unpaid installments of special assessments falling due after the year 1925, taxes for 1925 to be prorated. The decree ordered all taxes to be prorated as of the date of delivery of the deed, and that the premises be conveyed subject to taxes levied after the year 1927 and to unpaid installments of special assessments falling due after 1928. This decree
Appellants contend, finally, that the decree is in error because it does follow the terms of the contract and orders conveyance subject to two mortgages assumed by appellees which are alleged to have been paid off by appellants. The amount of these mortgages entered directly into the consideration agreed upon for the property. We do not see that any inequitable result need arise from carrying out this provision of the decree which orders conveyance subject to incumbrances in such amount.
The decree of the circuit court of Cook county is affirmed.
Per CURIAM: The foregoing opinion reported by Mr. Commissioner Edmunds is hereby adopted as the opinion of the court, and judgment is entered in accordance therewith.
Decree affirmed.