McFarlane v. Williams , 107 Ill. 33 ( 1883 )

Mr. Justice Scholeield

delivered the opinion of the Court:

The objections relied upon by counsel for appellant for a reversal of the judgment below, will be noticed, so far as deemed important, in the order in which they are urged in their printed argument.

First—It is contended' the alleged contract for a lease is indefinite and uncertain. This is the language of the contract :

“It is hereby stipulated and agreed, that in case I purchase lots 1 to 5, and lots 10 to 17, in Dobbins’ subdivision of block 55, of the school section addition to Chicago, that I will lease to W. H. Williams said lots 1 to 5, both inclusive, and said lots 10 to 14, both inclusive, for one year, from 1st May, 1881, with the option to said Williams to have said lease extended for one year, and again for another year,—the last year, however, to be subject to the right of said McFarlane to sell said premises, or to improve them. This is made in consideration of services rendered by the said Williams in effecting the purchase of the said property.

“Witness my hand and seal this 15th day of May, 1880.

“The rent to be paid by the said Williams is $1513.84, subject to any errors in-the figuring hereto attached, and the taxes on the property so leased.

(Signed)- H. McFarlane. [Seal.]”

Certain papers, with calculations thereon, are attached to the paper on which the contract is written.

The respect wherein it is contended the contract is indefinite and uncertain, is, first,-in the amount of rent to be paid; second, the time when it is to be paid; and third, the time when the taxes are to be paid. We perceive no difficulty in either respect. The amount of rent specified in the contract is, beyond all question, definite and certain. It is $1513.84. But does the fact that the probability of a mistake in this amount is contemplated, and a provision is inserted in the contract providing for its correction, make any difference? Surely not. Had no such provision been inserted, it would undoubtedly have been competent to have alleged and proved the mistake in a court of equity, and parol evidence would have been admissible to have shown the mistake. (Kerr on Fraud and Mistake, (Bump’s ed.) 416.) But again, “that is certain which may be rendered certain,” is a maxim which may with propriety be applied here. It is proved the amount agreed to be charged for rent was ascertained in this way: The five lots fronting on Canal street were 110 feet one way, and 100 feet the other way, making 11,000'square feet. There were eight lots fronting on Harrison street, each 24 feet wide. By multiplying the 24 by 8, the total width of these lots is obtained. One of the lots, however, was 3 feet wider than the others, and there was, therefore; this 3 feet to be added to the total width of the lots. And then there was, also, a private alley between the lots, which was likewise to be added to the total width, making, in all, the total width 205 feet, which, being multiplied by the length or depth of the lots, (100 feet,) makes 20,500 square feet. To this 1950 was added on account of a private alley, and then the 11,000 feet for the lots on Canal street, making a total of 33,450 feet. From this was subtracted 7920 feet, on account of the lots retained by McFarlane, (being 15, 16 and 17,) leaving 25,530 square feet as the number of square feet in the nine lots leased to Williams. The purchase price of the property was $31,000, which, being divided by the whole number of square feet, gave the purchase price per square-foot, and that being multiplied by 25,530, gave the purchase price of the nine lots leased to Williams, and upon this amount interest was computed at six per cent, as determining the amount of rent to be paid by Williams. The value of the lots leased to Williams, thus ascertained, was $23,564, and in the original calculation six per cent on this amount was counted as amounting to $1513.84, by mistake, instead of $1413.84. The error is patent upon the face of the calculations. Now, these facts are all distinctly shown by the figures and calculations annexed to the contract. It is true it required parol evidence to explain what the figures meant, but this, we have seen, was perfectly competent for the purpose of explaining and correcting a mistake. The only dispute in the evidence on this question is, whether the rate should be six or seven per cent, appellant testifying that it should be the latter, but in our opinion the evidence clearly shows that he is wrong, and that the rate was six per cent.

In our opinion it would have been sufficient to have shown, in the agreement, the data by which the amount of rent was to be ascertained, leaving it to be worked out by calculation, and it was sufficient to state a gross amount supposed to represent such calculation, subject to the correction of any mistake that might have occurred in ascertaining that amount. In such case there is no real uncertainty,—the amount must always be precisely the same,—the only difficulty lying in the proof of what was the data upon which the calculation was made. The amount stated being prima facie correct, must be taken as tbe true amount until it is clearly and unequivocally proved that another and different amount is the true amount, and then that amount, when ascertained, in presumption of law, is the amount which the parties contracted should be paid, and must have been paid, in order to comply with the contract. The mistake of counsel for appellant, here, is in assuming that a mistake in stating the true terms of a contract, and uncertainty in the terms of a contract, are one and the same thing. In the former case, in presumption of law, there is no uncertainty, while in the latter case there can be no accurate knowledge of what the terms of the contract really were, and hence the court can not know what should be enforced.

The time of payment of the rent, here, is, clearly, the end of the year, no usage or agreement being shown to the contrary. (Dixon v. Niccolls et al. 39 Ill. 386; Taylor on Landlord and Tenant, sec. 391.) The taxes were to be paid when due, and this is fixed by law. They must be paid so as to avoid a sale of the property for their non-payment, or the enforcement of any personal liability against the lessor on account thereof.

Second—The next contention of counsel for appellant is, the contract is not based upon any consideration. ' This is not, in our opinion, sustained by the record. The contract recites an adequate consideration, and the burden is upon appellant, if he would impeach that recital, to do so by a clear preponderance of evidence. Waiving the question whether, in the absence of evidence of fraud or mistake, appellant is estopped by such recital, we think he has not clearly and unquestionably proven that it is untrue. At. most, it could only be said the evidence is contradictory, and the question is not free from doubt.

But again, this is not a unilateral contract, as is assumed by appellant’s counsel. By accepting the deed,—as, technically, the contract is,—appellee became bound by the obligations it imposed upon him. Although a deed poll, it recites that appellee is to pay $1513.84 rent, etc., and his acceptance' makes him a direct obligor or promisor to this effect. (Kershaw v. Kershaw, 102 Ill. 307; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35; Schmucker v. Sibert, 18 Kan. 104.) So it is said in Fry on Specific Performance, (2d Am. ed.) 202, *137, sec. 29S: “An agreement contained in a deed poll was enforced, notwithstanding an objection which was taken from the unilateral nature of the instrument.” And the author refers to Otway v. Braithwaite, 1 Finch, 405, and Butler v. Powis, 2 Coll. C. C. 156. See, also, to like effect, Old Colony R. R. Co. v. Evans, 6 Gray, 25. The promise to pay rent was a sufficiently valuable consideration for the promise to lease. See Chitty on Contracts, (11th Am. ed.) page 50, note d.

Third—It is contended the insolvency of appellee was, of itself, a sufficient reason why appellant should not execute the lease as required by the terms of the contract. To this we think there are two sufficient answers. First, the proof dees not establish the fact that appellee was insolvent on the 1st of May, 1881. It is unnecessary to recite and comment upon the evidence on this point. It is enough to say that we have carefully examined and considered it, and while it undoubtedly establishes that appellee was a man of small means, it does not establish that he was insolvent at that time. Second, appellee offered abundant security that he would pay all rent, and this was rejected, not because of its insufficiency, but because appellant had determined that he could do better, and would therefore fail to perform his contract with appellee.

Fourth—It is next insisted the decree neither conforms to the allegations of the bill nor the evidence; that “the bill alleges that the yearly rental of said premises to be paid defendant by complainant, should be $1513.84,” while the decree provides that the amount shall be $1413.84. This is not a fair presentation of the allegation of the bill in this respect. The bill alleges that the amount of $1513.84, stated in the contract to be the yearly rental to be paid by appellee to appellant, was “subject to any errors in figuring six per cent on a valuation of said premises * * * at $23,564,” and hence, of necessity, it results that the amount to be paid, instead of being $1513.84, .must be $1413.84. And this, we have seen, is borne out by the evidence.

Fifth—The remaining objection is, appellee is barred by laches and lapse of time. Appellant’s refusal became absolute May 1, and the present bill was filed on the 29th of July following,—within less than three months. Appellee gave appellant no reason to believe, that we have been able to discover, upon the faith of which he was justified in acting, that he did not intend to insist upon his rights under the contract. No peculiar circumstances are shown requiring greater promptness in filing the bill than appellee used.. Appellant’s refusal was inexcusable and willful, and he is entitled to no sympathy not due in general to all who break their engagements in order to make profit thereby.

The judgment below is affirmed.

Judgment affirmed.