225 Ill. App. 321 | Ill. App. Ct. | 1922
delivered the opinion of the court.
After carefully reviewing the evidence introduced upon the trial and considering the several points made by counsel for defendant as grounds for a reversal of the judgment, we are of the opinion that the trial court’s finding was right and that the judgment should be affirmed.
If the so-called proposal, signed by plaintiff and dated August 20, 1919, be considered as a proposal by her to purchase of defendant the lot therein described, it was withdrawn by her before any acceptance thereof by defendant and notice to her of such acceptance. In the case of Gross v. Arnold, 177 Ill. 575, it is decided that a written proposal to buy land, signed and acknowledged and delivered to the agent of the owner of the land, to become operative upon acceptance of the terms by such owner, may be revoked at any time before acceptance, the court saying (p. 577): “It is familiar law an offer to enter into an agreement may be withdrawn at any time while it remains unaccepted. The proof here shows a proposal by the appellees and a withdrawal thereof before notification of acceptance. This prima facie esta,blisies a contract was not completed. If the appellant in any binding way accepted the proposal before it was revoked it devolved on him to prove such acceptance. We find no proof of that character in the record.” (See also Smith v. Weaver, 90 Ill. 392, 393; Crandall v. Willig, 166 Ill. 233, 239; Corbett v. Cronkhite, 239 Ill. 9, 17; Clark v. Potts, 255 Ill. 183, 188.)
If the so-called proposal, as finally signed by the parties at the times shown, be considered as an attempt to incorporate into a contract all the terms of the purchase of the lot therein mentioned, it is void as a unilateral contract. When, on the morning of August 20, plaintiff gave Ham her check for $1,250, payable to defendant’s order, she received a receipt signed by Ham, in which it was stated that the amount was received “on account of her proposal for purchase” of the lot in question for the price of $12,500, and that the receipt was issued “subject to prior sale and to acceptance” by defendant, and that said sum was to be returned to her in case of prior sale or such nonacceptance. When these things were done it is clear that defendant was under no obligation to make a conveyance of the lot to plaintiff. When later in the same day Ham again called on plaintiff and presented the duplicate proposals to plaintiff for her signature, and she signed them, and Ham had delivered them to defendant, it is equally clear that defendant was under no obligation to make such conveyance. And, in our opinion, after defendant had signed said duplicate proposals and after one copy thereof had been received by plaintiff by mail, defendant was not bound thereby to make a conveyance of the lot to plaintiff even though she should have thereafter elected to make, and did make, further payments up to $6,250. In the third clause of the proposal is the statement: “The said above described, property, if conveyed, is to be conveyed by a. good and sufficient warranty deed,” etc. Then follows the recital of various restrictions and conditions. Then under plaintiff’s signature to the proposal proper there follow certain statements in the form of a receipt, under which appears defendant’s signature. He therein acknowledges the receipt from plaintiff of $1,250, “as deposit on the above proposal,” but he does not accept the proposal as made. All the agreement on his part is, that, if all the subsequent payments agreed in said proposal to be made by plaintiff have been made promptly when due, said sum of $1,250, together with subsequent payments, is to be returned “if for any fault, failure or neglect chargeable to me the said above recited property shall not be conveyed in accordance with the terms of the said proposal.” He does not promise to convey the lot to plaintiff even though the subsequent payments mentioned should be promptly made by her. The mere fact that he has the right, as stated, to return all moneys paid by her presupposes the fact that he has a right to refuse to convey the lot, if he should so desire. The contract, if it is a contract, is unilateral, lacking in mutuality and void. (Vogel v. Pekoc, 157 Ill. 339, 342; Joliet Bottling Co. v. Joliet Citizens Brewing Co., 254 Ill. 215, 218; Kingsbury v. Cornelison, 122 Ill. App. 495, 500.) This construction of the instrument is strengthened possibly when consideration is given to certain statements contained in defendant’s letter of August 21, 1919, which accompanied the instrument as returned to plaintiff, in which he writes that he insists that “Hulbert Fullerton Avenue Highlands be handled on honor, without misrepresentation and without any agreement or promise whatsoever other than thosé contained in the Proposal to Purchase, and I signed the receipt attached thereto with the understanding that this is the basis on which you signed.” There was no eonsideration for plaintiff’s payment of the $1,250 and for her promise to make the further payments mentioned, and she was entitled to recover back the $1,250 in an action for money had and received. (Smith v. Weaver, 90 Ill. 392, 393; Bradford v. City of Chicago, 25 Ill. 411, 424; Laflin v. Howe, 112 Ill. 253, 262; Drennan v. Bunn, 124 Ill. 175, 186.) The acts of the defendant in withdrawing the lot from the market on August 20, 1919, and withholding it from sale until February 20, 1920, in placing a cement sidewalk adjacent to the lot, and incurring the expenses mentioned for commissions did not bind him, to make a conveyance of the lot to plaintiff. (Corbett v. Cronkhite, 239 Ill. 9, 17.)
For the reasons indicated the judgment of the municipal court is affirmed.
Affirmed.
Barnes and Morrill, JJ., concur.
