Kimball v. Tooke , 64 Ill. 380 ( 1872 )

Mr. Chief Justice Lawrence

delivered the opinion of the Court:

On the 27th of February, 1869, the complainant, Kimball, sold to the defendant, Tooke, a tract of land in Cook county for $30,000, of which the sum of $100 was paid at the execution of the contract, and the further sum of $5000, including the $100, was to be paid on or before the 15th of March. The contract required the remaining payments to be made, $5000 on the 1st of September, 1869, and $20,000 in two equal annual instalments. It contained clauses of forfeiture in case of non-payment.

This bill was filed by Kimball to have the contract rescinded, on the ground that the payment to be made on the 15th of March was not made, and the complainant then gave notice of rescission. The bill alleges that, notwithstanding said notice, the defendant subsequently recorded his contract, which is thus a cloud upon complainant’s title that he seeks, by this bill, to remove.

The only ground set forth in the bill for granting the desired relief is the non-payment of this first instalment, and the notice of forfeiture thereon given.

The burden of proof is, of course, upon the appellant, and he has failed to sustain his bill. Indeed, the preponderance of proof is decidedly against him. The bill is sustained only by his own testimony, while Tooke, Pitner and White positively deny that Kimball gave notice of forfeiture. • They testify, on the other hand, that when the parties met on the 15th of March, some incumbrances were found on the title, and in order that they might be removed or explained, the business stood over by agreement until the next day. The next day the parties again met, but, the incumbrances not haying been removed, the business was again postponed by consent, with an agreement that the parties should meet on the following Saturday or Monday. Kimball did not again appear. Tooke addressed several letters to Kimball, offering to proceed with the contract. The latter took no notice of these, but on the 2d or 3d of May notified Tooke that he considered the contract rescinded.

On the 5th of May, Tooke tendered the first payment, and the tender was refused. No tender was made of the instalment due in September, and in December, 1869, this bill was filed.

Counsel for appellee insist that we must confine our attention to the case made in the bill, and this of course is true. Whether, as urged by appellant, it was the duty of Tooke to tender payment of the first instalment before the 5th of May, even accepting his own evidence as to what occurred on the 15th and 16th of March, or whether it was also his duty to tender the September instalment, are questions to be solved when Tooke shall file a bill for specific performance, if he ever takes th.at course. They are certainly not questions presented by the pleadings in this case.

The general allegation in the bill, that only the sum of $100 has ever been paid to complainant on the purchase, can not be accepted as extending the scope of the bill beyond the specific allegations in regard to the non-payment of the first instalment on the 15th of March, and the forfeiture then declared, upon which the claim of relief is based.

The case made by the bill rests upon those alleged facts, and it. was only that case that the defendants were required to meet.

The decree of the circuit court dismissing the bill was, therefore, correct, and is affirmed, but it will stand as a decree without prejudice to the rights of these parties in case a bill should be hereafter brought by the defendants herein for specific performance. Concei’ning the position of the parties in reference to such, possible litigation, we express no opinion.

Decree affirmed.