Mix v. BalducMix v. Balduc
- Reporters:
- Before:
- Sheldon
delivered the opinion of the Court:
The bill of complaint in this case was filed by appellee to compel a сonveyance to her of the north half of lot 4, in block 44, in the town of Momence, undеr the following instrument in writing to her:
“I will sell Sarah Delora the north half of lot No. (4) four, in block No. (44) fоrty-four, in town of Momence, for fifty dollars, dating the transaction from this day, and will executе her papers whenever she is prepared to pay, within three years, as she is a widow.
James Mix.
Momence, III., April 15, 1863.”
The court below decreed the relief asked, upon payment of $75.45, thе sum named in the writing, with interest.
The defendant appealed from the decree.
The bill alleges that, in May, 1861, Mix, for a good consideration, agreed to sell the half lot to the then husband of complainant, Alexander Deslauries, who, with his family, took possession thereof, fenced it and built a house upon it in that month, and oсcupied it with his family until his death, on the 4th of July, 1862, and that complainant has occupied аnd resided in the same ever since; that, on the’ 15th day of April, 1863, Mix agreed to sell her the lot for $50, and give her four years to make the payment, but that he fraudulently inserted in the memоrandum in writing he gave her, three years as the time; that she was illiterate, could not reаd writing, and could not speak English; that the business was done through an interpreter.
The bill does nоt pretend that there was any offer made to Mix of the purchase price until September 20th, 1866, but claims that that was within the agreed time of four years. The proof fails tо support this allegation of the bill as to four years’ time. The complainant hersеlf testifies in support of it, but she is contradicted by Mix, and the writing speaks against her. Her brother testifies that she was to have four years to make payment; but, on .further questioning, his meаns of knowledge was what the interpreter told him. The writing must be taken as the evidence оf what the time was.
The non-performance on the part of complainant in the delay to make any offer of payment of the purchase price for so long after the stipulated time, without any excuse therefor, would preclude the right tо call for a specific performance, unless the stipulated time for pаyment had been waived.
The evidence shows that the first attempt at payment was through one Taylor, a brother of complainant. He paid the money to one Bаllard, for Mix. Ballard afterward offered to pay the money to Mix, and asked him for a dеed, saying that was his instruction. Mix inquired who let him have the money. Ballard told him. Mix then said he did not propose for Taylor to speculate on the lot at his expense. Ballard tоld him that Taylor left the money for his sister. Mix said that the time he had promised to make a deed in had passed and gone by. He wasn’t going to wrong the woman, but he didn’t propose tо have Taylor make money out of it. There was another piece of testimony as to a conversation between Mr. Balduc, the present husband of the comрlainant, and Mix, relative to paying taxes on the lot for 1867 or 1868. Mix said that he had paid the taxes on Mrs. Balduc’s lot. Mr. Balduc asked him how much he had paid. He said he believed he paid $5. Mr. Balduc then said it was not $5, and then offered to pay back $3.75, the amount of thе taxes. Then Mix said that he would see, and tell him the next time he came. Here, after thе expiration of the time for payment, was a distinct recognition by Mix of the lot being Mrs. Bаlduc’s lot, and asking to have refunded to him a tax he had paid on the lot for the yeаr 1867 or 1868, being a year subsequent to the three years’ time named in the writing. Except for this onе year, the complainant, according to the testimony, had paid all the taxеs from the time of making the writing to the filing of the bill. We think there is evidence from which the court below might have inferred that there was a waiver of the time stipulated in the writing for making the payment.
It is objected to the validity of this instrument in writing, ’ that there was no agreement on the рart of the complainant to pay; that there was no mutuality of Obligation. The testimоny of the complainant was, that, since the making of the writing, she had built, on the premises, а corn crib, barn, and sunk a well, and kept up the fences and paid the taxes. We consider that here would be enough of consideration to make the agreement of binding force as to Mix.
We think the decree may be supported under the evidence, and it will be affirmed.
Decree affirmed.