Brizzolara v. Mosher , 71 Ill. 41 ( 1873 )

Mr. Chief Justice Breese

delivered the opinion of the Court:

This was a proceeding on the equity side of the Superior Court of Cook county, by bill, to remove a cloud alleged to have been placed by plaintiffs in error on the title to certain lots in the city of Chicago, by causing to be recorded a certain contract for the sale thereof, executed by D. Cole & Son, claiming to be the agents of the defendants in error to make such contract.

The court decreed as prayed. To reverse this decree the record is brought here by writ of error.

The following is the authority given by defendants in error:

“We hereby authorize D. Cole & Son to act as agents for the sale of the following property, viz: Houses and lot 63x130, about, to alley, 535, 537 and 539 West Madison street, renting for $2,000 per annum, for the sum of $18,000 : $8,663-68 cash, and balance assume two notes of $4,666.60 each, at 8 per cent, due in one and two years, from March, ,72; secured by trust deed on the premises. Abstract of title, and a good and sufficient warranty deed, to be furnished by the seller. Commission for selling, $225.

“Louis Brizzolara,

“Guiseppe Botto.”

Chicago, July 8, 1872.

And this is the contract entered into with plaintiffs in error:

“Chicago, Sept. 26,1872.

“Received of William H. Mosher $200, as earnest money, to be applied toward the purchase of the following premises, known as numbers 535, 537 and 539 West Madison street: lot being 63 by 136 feet to alley, facing south on Laflin street, hereby bargained and sold to the said William H. Mosher, for the price of $18,000 (dollars) ; $5,800 more to be by him paid upon the delivery of a good and sufficient deed for the same, within thirty days from date, or as soon as abstract of title can be brought down ; papers to be dated October 1, 1872, with release of dower after title has been examined and found good, and the balance, $6,000 in one year, 8 per cent interest, $6,000 in two years, 8 per cent interest, to be secured by trust deed on the premises. Should the title to the property not prove good, then the payment to be refunded.

“Louis Brizzolara,

“Guppe. Botto.

“By D. Cole & Son, Agents.”

It will be perceived, in the original proposition to sell, of the date of July 8, 1872, the cash payment was upwards of eight, thousand dollars ($8,663.68), and, being so large, a purchaser could not be found, and this being represented to defendants in error, the terms were changed, by writing on the original proposal of sale, on the 26th of September, the terms as found above. The only question is, what is the true construction of this contract.

By the first proposal of July 8, the purchaser Avas to assume the tAvo notes, of $4,666.60 each, secured by a mortgage on the property, due in íavo years from March, 1872.

The complainants’ theory is, as the original proposals Avere changed, in Avhich an outstanding incumbrance Avas referred to, Avhich the purchaser Avas to provide for, by the contract Avith the agents complainants Avere to provide for it. They Avere to take up those notes as they matured, the purchaser to rely on their Avarrantv deed. Complainants noivliere proposed to convey a perfect title, but to make a deed Avith covenants of general Avarrantv; and the last clause of the contract provides, “should the title to the property not prove good, then the payment to be refunded.” The object of this clause evidently is, to avoid disputes about the title, and Avhile it is being adjusted the purchaser keeps his money for other operations. The same Avith the vendor: he is enabled to find another purchaser if his first vendee is dissatisfied Avith the title. Neither party can embarrass the other.

Complainants tendered a general Avarranty deed, and demanded payment, Avhich Avas refused, and they then tendered the earnest money, Avhich plaintiffs in error declined to accept.

We think it a clear case for the complainants, and that the Superior Court rendered a proper decree, and which Ave affirm.

Decree affirmed.