*1 (No. 18865.

Martin vs. C. M. Appellee, Theodore

et al. Appellants. Opinion filed June Rehearing denied October *2 Harry and Arthur G. Brown, Higgs, for E. ap- pellants.

Henry for Waterman, appellee.

Mr. this reported opinion: Commissioner Partlow Martin Theodore Appellee, Anderson, filed his bill in 'Jjf the circuit court of Henry county M. against C. appellants, Bills and F. A. for the Snodgrass, a written contract for the of real sale estate. The cause was referred to a master to take the evidence and report his conclusions. The master recommended a decree as to his were prayed, overruled, a decree exceptions report was entered in favor of has been appeal to this court. prosecuted were real estate Illinois. agents Geneseo, were farm land in

They but were not selling Henry county wanted to acres partners. buy Appellee eighty belonging A. asked if he Carlson. had the Snodgrass John land that he sale, for did not but Snodgrass replied that he would see Carlson about it. had previously had the land for sale. On and his July 27, 1920, appellee Arthur A. met brother-in-law, Swanson, at the Snodgrass told Geneseo Yards. that Carl- Snodgrass Stock acre for land. said it son wanted per $500 There was considerable conversation, was too dur- high. which Bills arrived. He asked if he ing would if willing a con- if tract to take it over became dissatisfied with the afternoon of the During day same met Snodgrass ap- his wife and the bank in pellee, Swanson Geneseo. then contract of sale, Snodgrass Carlson, for asked Snodgrass about $39,000. Appellee and Bills had if execute promised land. sent bought Bills, who drew the contract: following “Geneseo, Illinois.

July 27, 1920. certify “This is to we C. M. Bills & F. A. Snodgrass by or take back recently farm bought 80-acre Carlson John half quarter of the North East west P 26—T N. Sec Range pd per for the amt we pay East for the & 3 improvements put manet we during year fall tllis date C. M. F. A. Snodgrass,

M. Theo. Anderson.” this contract was executed signed After with asked whether contract Carlson. Appellee with his wife should as she was Carlson, some of title to be taken furnishing money in her stated that was not partly name, Carlson and March necessary. 1, Appellee paid $1000 and a deed was paid $38,000, executed Carlson by and his wife. Carlson a commission of paid the sale. went into making and remained in until the possession bill was possession filed. In February, had the 1921, appellee contract drawn by Bills re-written aby lawyer, as follows: “This day July, entered into this of 27th Snodgrass, parties and between C. M. Bills and F. A. of the first part, Anderson, party part: and M. Theo. of the second parties “Witnesseth, part day the first that whereas of have this party part, thirty-nine sold to of sum of the second thousand quarter (E of the north west ^2) the east half ($39,000), dollars township twenty-six (17) (26), seventeen (NWJ4) of section principal meridian, Henry north, (3) range three east of 4th part acting in trans- county, parties the first such Illinois, said of Carlson, the former owner of said agents action as the of John land. thirty-nine part for said whereas, of the consideration “And part, paid by party the second .was ($39,000) of thousand dollars purchase part from parties said land agreement by of first to sell. he declare years five should part, within party of the second other premises, and for in consideration of therefore, “Now part hereby paid, parties the first of consideration, in hand valuable part the de- second above party of the purchase from ($39,000), thirty-nine thousand dollars land, of for the sum scribed par- notifying date, that years from this any five time within party notice any they receive year by September 1 of ties lands. Parties to take said part them he desires party of the second agree to reimburse part further the first put onto said improvements he permanent part for them. land to he sell said year period, should during five said seals hands and our hereunto set whereof, we have “In witness first above written. day year (Seal) C. M. Bills, (Seal) E. A. Snodgrass, M. Theo. Anderson. (Seal)” the contract was re-written After appellee took it, without apparently who He signed reading it. toit Snodgrass, then one clause and changed presented is the contract which it. This the bill is based. in the fall claims that he concluded to avail himself of his and so notified appellants. About two weeks later went house, appellee’s testified offered to make a with trade him. As to this cor- part conversation to a roborated certain extent testified Snodgrass. that he offered land, is denied re-purchase *4 Bills admitted that he did appellee. not offer appellee any money. claim that in October, re- Appellants 1922, they to sell the farm to quested appellee them, stating they could itof at that time without any material dispose loss refused, and then told him them;

to sell the farm to them at that time they that if he did not the contract would no be bound and that longer revoked the Between and March August same. notified three times of his elec- 1, 1924, appellee deeds, he tendered abstracts of tion to exercise his option, title and tax and demanded his but money, receipts appel- the bill was lants refused to contract and filed. perform that the land was to conveyed contend ap and wife as tenants in that the wife common; pellee to be enforced and was not a contract sought party suit; that the contract cannot be en not a party and because it is lacking mutuality obligation forced could not maintain a bill against remedy, the wife to cannot therefore appellee compel performance, maintain a bill rule is that against appellants. general will be decreed where the specific performance rights and remedies of are not and where mutual, the parties cannot whom party against sought he have, as a return for such all that contracts performance, Berkson, for in the Wurn v. original agreement. ( This rule contracts 231.) of mutuality executory applies in which there are to be mutual rights obligations per formed the rule each of but does not apply parties, or unilateral contracts. on Contracts option Page ed. it is “An is said to be sec. said: (2d 571,) option executes unilateral agreement binding upon party it becomes a contract execution, date of its inter its an ex terms; when exercised according partes offer binding clusive to buy; continuing privilege one who makes it but not on one on the specified or an to whom it is made unless accepts; obligation and leaves it discretionary which one binds himself sell The contract in this case with the other buy.” party or unilateral contract its terms was alone and could be en- one party binding upon

529 on Perform forced against party. (Pomeroy Specific ance, sec. An ed.) (3d 169, p. 439.) option agreement convey, without a or covenant to corresponding obligation be in will enforced if made purchase, equity sufficient and upon valuable consideration. v. (Anderson Warren, Ill. Guyer id. In 415; 328.) v. 251 175 Mason Caldwell, it v. Gilm. held that 196, was may equity 5 enforce the of a contract of sale of land even the vendor has no title the at the though time of the the sale, or even at the the bill filing in he is a specific performance, provided position title at time the In convey decree is entered. good Cohen v. Ill. it was held Segal, weight 253 is that the is authority vendor to be able to only required time the convey decree is entered. Where a contract is made a husband and is not it by his wife may be enforced if husband a deed wife is signed by tendered. v. Ill. (Mikelaiczak Kruppa, 209; Wagner 254 v. McClay, id. v. id. 560; Firebaugh Wittenberg, 306 309 536.) warranty tendered deed himself and wife. signed by under this deed Appellants the exact title for acquire contracted, the contract void because it was lacking mutuality. insist contract cannot enforced because it was not founded a valuable consideration upon for whose moving benefit performance that the court will into the real con- sought; inquire sideration fact is contract under notwithstanding seal; and that a unilateral or contract not based upon a valuable consideration be revoked time before acceptance. of these claims is contended that support there are two contracts in this case—one executed about the time of the sale the other nine about months later; that the bill was based and even if conceded that there was a consideration for first there was no second. A val- consideration consideration consists either of some interest,

uable right, or benefit to one or some forbear profit accruing party, loss or or ance, suffered detriment, given, responsibility the other. undertaken (1 Contracts, ed.) Page (2d Ins. sec. v. Commercial Co. 514; 92; People Life Buchanan International At Bank, id. the time 500.) contract was entered the first into wanted to buy the land. It had been in the hands of Bills for sale. Snod *6 he never it for claims sale. talked to grass it. about Snodgrass purchasing immediately got with the in communication owner and negotiations. began It was that sale consummated. efforts the was through that the owner to wanted per He reported if he be to for Bills "asked willing acre. that to at appellants agreed $39,000 provided re-purchase not at that years. time within five did price any immediately to this but Snodgrass arrangement, a con in communication with owner and secured got his wife and tract for He then called $39,000. was entered into between first contract appellants in agreed which re-purchase appellee, real were time within five years $39,000. Appellants The to make a trade. were They estate agents. trying commission for that the owner shows paid $160 evidence went to money claimed that this only «the trade. It is Snod it, no of but under all Bills received and that grass part sufficient consideration for in there was a facts evidence was The which of the contract. execution sold land seal, appellee; recites under owner; of the were as the agents acting that appellants for the $39,000 appel consideration paid a of the part the land of appellants re-purchase lee was agreement premises, and that consideration from appellee; in hand consideration for other valuable paid, Thole, Rohling from appellee. to re-purchase agreed which he sold Thole owned Rohling 425, on November Thole executed an agreement 1909. March giving Rohling right re-purchase a new was which stated Subsequently agreement prepared, a consideration dollar, of one was not paid. new was made for the agreement it exe- purpose having cuted the wife of Thole, and was her about signed by a month after the contract was original signed. Upon refusal of Thole to re-convey in accordance with pro- visions of the contract a bill for filed and a decree was entered as in the bill. On prayed this court page said: “It clear seems from the evidence agreement the land to was a re-convey Rohling of the contract of part sale to Thole of the con- part sideration for the conveyance, and that was not merely a voluntary rescinded Thole at his might will. The second agreement was not a new the land to re-convey but was a re-state- merely ment, in writing, original agreement, pur- the wife pose o.f Thole It having based consideration of one dollar recited supposed *7 therein, but the consideration for which the upon agreement of November 16, was entered into between the par- ties. It was a valid, Thole to binding agreement requiring the land to re-convey his with the appellee upon compliance terms and conditions stated in the instrument.” In the case at bar the execution contract was a concur- original rent act with the It was rea- purchase property. son of this contract that was induced to purchase The contract as drawn was short property. originally and indefinite. had a new contract drawn Later which contained the same substantially as provisions contract but in more terms. Under ordi- original explicit circumstances based a con- nary upon a contract under seal is sideration or irrevocable be- upon of the time execu- fore its agreed upon expiration There tion. v. was consid- McClay, supra.) (Wagner eration for the re- had no right fuse because had, performance prior expiration lof five offered to had years, refused sell. that at the time the new contract

Appellants complain was executed did not state to Bills the correctly contents of the instrument which he and that the signature Bills was obtained fraud and There deceit. is no merit in this contention. After the second contract voluntarily took it to prepared appellee as he He full signed it, claims, without reading examine it if he saw fit but did not opportunity improve No his obtain opportunity. deception practiced there is no substantial variance in the terms of signature, the two contract was instruments, and binding on appellants.

The the claim whole seems to be based controversy and it declined, value of the land is insisted by will not enforce a court of equity a contract where there has been a decrease in the value of lands. one case is cited in of this contention Only support It and it does not sustain the contention. has been held even several cases that be decreed there a decrease in the value of the land has been though Allen contracted to be sold. Ill. Ander Hayes, 374; v. Fuller son v. Bradley, supra; the decree will be af- find no error, We reversible firmed. Mr.

Per Curiam: foregoing opinion reported as the hereby Partlow is adopted opinion Commissioner therewith. entered in accordance court, judgment Decree affirmed.