217 Ill. 40 | Ill. | 1905
delivered the opinion of the court:
It is first contended the circuit court erred in admitting parol proof of the arrangement between H. O. Stone & Co. and Mulvaine, whereby fit was agreed that Mulvaine should bid at the master’s sale the full amount of the decree, as it is said the effect thereof was to change the written contract signed by Mulvaine on November 8, 1895. We do not agree with such contention for two reasons: First, while the contract is incomplete, we think it shows upon its face, and without the aid of parol evidence, that Mulvaine was not to re-pay said sum of $1400.13 to H. O. Stone & Co. unless the premises were redeemed from a sale for the full amount of the decree. For Mulvaine to have agreed to pay bade the amount of said check, on redemption, unless he bid the full amount of the decree would have been for him to have agreed to waive the guaranty of H. O. Stone & Co. which he held to protect him against said mechanics’ liens. This he clearly did not intend to do, and as such premises were not redeemed, Mulvaine was not, by the express terms of the agreement, bound to re-pay to H. O. Stone & Co. said sum of money. And secondly, the effect of said evidence was not to change said contract, but to make clear the provisions thereof, which is always permissible where a« contract is uncertain, ambiguous or incomplete. Ruff v. Jarrett, 94 Ill. 475; Bradshaw v. Combs, 102 id. 428; Razor v. Razor, 142 id. 375; Vail v. Northwestern Mutual Life Ins. Co. 192 id. 567; Davis v. Fidelity Fire Ins. Co. 208 id. 375.
It is said, however, that conceding the contract expressly provides that Mulvaine agreed to re-pay to said H. O. Stone & Co. the amount of said check only in case of a redemption from a sale for the full amount of the decree, that part of the contract was changed at the time McKinney had the interview with Mulvaine after the first sale and when he was requested to return the amount of said check to H. O. Stone & Co. We do not so understand that conversation. Mulvainq insisted on retaining the money, and said he would protect the interest of H. O. Stone & Co. and see that the money was properly applied. We think he meant thereby that he would apply the money according to the arrangement made with McKinney at the office of H. O. Stone & Co. on the 8th of November, 1895, when he and Conover had the first interview with McKinney; that is, he would apply it by bidding in the proprety at the full amount of the decree. We are unable to understand-why Mulvaine should agree to use this riioney in payment of said mechanics’ liens prior to the sale of the property, and also agree to re-pay the amount of said liens to H. O. Stone & Co. in case the property should be redeemed, the effect of which would be that Mulvaine would pay said sum twice. At the time the contract was made and the check delivered McKinney anticipated the property would be redeemed, and that H. O. Stone & Co., when 'it was redeemed, would get back their money, and perhaps lost sight of the fact that a sale of the property for the full amount of the decree would satisfy the mechanics’ liens. Mulvaine declined to give up the money after the first sale fell through, but insisted on applying the fund as it had been agreed it should be applied at the time the check was delivered, and he so applied it at the time of the second sale.
It is said the court erred in refusing to permit H. O. Stone & Co. to prove that they were unable to reimburse themselves for the money advanced to Mulvaine in satisfaction of said mechanics’ liens out of the insurance money which was held in escrow by the bank. We think there was no error in the action of the court in declining to admit such proof. Mulvaine was in no way a party to that transaction and was not responsible for the loss of the security of H. O. Stone & Co. Mulvaine purchased the property for the full amount of said decree, in accordance with his arrangement with McKinney. Had the property been redeemed, then he would have been bound to return to H. O. Stone & Co. the amount of said check, with interest, and that was the extent of his undertaking. The property was not redeemed, and he was in no way responsible to H. O. Stone & Co. by reason of the fact that the effect of the contract made by them with him, when carried out by the purchase of said premises for the full amount of the decree, was to release the claim of H. O. Stone & Co. upon the fund held by the bank.
Finding no reversible error in this record the judgment of the Appellate Court is affirmed.
Judgment affirmed.
