Jackson v. Conlin , 50 Ill. App. 538 ( 1893 )

Opinion of the Court,

Waterman, J.

It may be that the abstracts of title first furnished were not sufficient, but we think that the evidence sustains the conclusion of the court below, that appellant allowed further time in which to remedy the defects complained of.

We see no sufficient reason for interfering with the finding of the court, that appellees, within a reasonable time after the defects claimed were pointed out, furnished additional and sufficient abstracts.

Appellant, Jackson, received these additional abstracts December 15th. If before that time he had determined to wait no longer for the abstracts called for by the contracts, or had before so notified appellees, he should then have so said, and not received the abstracts as though he meant to have them examined with a view of determining as to their sufficiency. He well knew that they were not delivered to him as security for the repayment to him of the $5,000 earnest money; and for him to have taken them with the purpose only of so holding them, would have been in effect to obtain them by deceit. • One can not complain if he is taken as meaning in his dealings what his acts represent and what he plainly gives another to understand. Bishop on Contracts, Sec. 412.

It was more than two weeks and not until after a deed had been tendered to him, that he made a written declaration of his intention to rescind the contract; his language in such writing being, “ I hereby rescind said contract.”.

This cause having been heard upon testimony taken in open court, the findings have the weight of the verdict of a jury, and we see no sufficient reasons for reversing the conclusions of the chancellor upon any material matters.

We have not considered whether the finding that the contract was modified so as to make the deferred payments date from December 12th, is justified by the law or the evidence, because we do not deem such finding material.

The contract provided that an abstract of title should be furnished within a reasonable time. What is a reasonable time, must depend upon circumstances. We do not think that because the payment of $20,000 fell due in thirty-five days, that necessarily the abstract must have been furnished within that time, but we think that such payment could not be required until not only the abstract had been supplied, but also a reasonable time for its examination had elapsed. The vendors asked nothing more than this.

The contract and the case now under consideration are essentially variant from that considered in Howe v. Hutchinson, 105 Ill. 501 and 100 Ill. 11.

It is quite true, as is urged by appellants, that parties have a right to make their contracts, and that courts have no power to alter them, and that time is of the essence of the contract under consideration. Yet this does not establish that a contract to furnish an abstract within a reasonable time, is an agreement to supply it within thirty-five days. The parties to this agreement might have provided that the abstract should be furnished within thirty or any other number of days, and such contract the court would have enforced, but they purposely left the time within which the abstract should be furnished, indefinite.

We regard the contract signed by the parties as mutual, and one which the vendee could have enforced performance of.

The option given the vendors, in case of a failure by the vendee, to declare the contract at an end and retain the earnest money, merely gave to them an election which of two things they would do if the vendee failed to fulfill his agreement, but it in no wise deprived the purchaser of his right to have the abstract, title and land bargained for and to enforce a specific performance of the contract.

The citations from Waterman on Specific Performance, Sec. 196, Bodine v. Glading, 21 Penn. St. R. 50, and other cases, to the effect that the remedy of specific performance must be mutual, are a correct statement of the law, and are applicable to a case where there is a want of mutuality. In the case of Maynard v. Brown, 41 Mich. 298, the contract was so drawn that it was optional with the complainant, the vendor, to retain the property or convey it. Specific performance was therefore properly refused. Mo such option exists in the contract now under consideration.

We can not refrain from commenting upon the lack of reference in appellees’ brief to either abstract or record. The abstract contains 129 pages, of which the certificate of evidence occupies 84. ' The record contains 390 pages; to these appellee has two references.

The case is largely one of disputed questions of fact, or rather of the conclusions to be drawn from disputed and undisputed evidence. Such a brief is of but little use to the court in its search for the truth. Mo earnestness of assertion can take the place of reference to the place in the abstract or record where support for such assertion is to be found.

The decree of the Circuit Court will be affirmed.