141 Ill. 502 | Ill. | 1892
delivered the opinion of the Court:
The contract set out in the bill does not authorize the money paid on the contract to be refunded upon the abstract to be delivered by appellant being found unsatisfactory, but only in the event that the title “should not prove good.” The allegations of the bill are:
“And your orator further shows unto your Honors that' afterward your orator caused to be prepared and presented to said Wells an abstract of the title of said premises in said written contract described, which said abstract was made by Handy & Co., managers of abstract department of the Title Guarantee and. Trust Company, being reputable abstract makers in said county, which said abstract was not found satisfactory to said Wells; your orator further shows unto your Honors that on the 2d day of May, A. D. 1891, he caused to-be tendered to said Wells a warranty deed, in due and regular form, executed by your orator to said Wells, conveying the premises aforesaid, and demanded of said Wells that he, said Wells, should comply with the terms of said contract upon his part, but said Wells refused so to do because of said abstract of title not proving satisfactory, and thereupon your orator caused to be tendered to said Wells said sum of $1000 in said contract mentioned, and demanded that said Wells execute to your orator a quitclaim deed for said premises, but said Wells refused to accept said tender and to execute said deed.”
These allegations are to be taken most strongly against the pleader, (Hale v. Cravener, 128 Ill. 408,) and for aught that is shown by them the title may have proved good. The only reason given for refusing the deed,—namely, because of the abstract of title not proving satisfactory,—may, for all that is here shown, have been quite apart from the title itself. It may have been because of known inaccuracies in its recitals, or other imperfection in substance or in mere matter of form ; but for whatever cause, the allegation is plainly not the equivalent of an allegation that the “title did not prove good.” Appellant should have shown, by specific allegations of acts, that he did, in good faith, all that he is required by the contract to do, before appellee could be in default for not complying with his part of the agreement. He can not take advantage of his own failure to comply, in good faith, with his part of the agreement. Hale v. Cravener, supra.
The question presented here was not considered in Brizzolara et al. v. Mosher et al. 71 Ill. 41. The question there considered was simply that of the construction of the contract.
The sufficiency of the allegations in the pleadings in respect to it was not considered.
We find no cause for disturbing the decree of the circuit court. The judgment of the Appellate Court is therefore affirmed. Judgment affirmed.
