McKinstry v. Elliott , 89 Ill. App. 599 ( 1900 )

Mr. Justice Burroughs

delivered the opinion of the court.

From the facts admitted by the pleadings and proven by the evidence in this chancery proceeding, as shown in the foregoing statement, we are of opinion that the court properly admitted the oral evidence from which it appears that the real contract of purchase and sale in question, as actually made by the parties thereto, was as is claimed in the amended bill, because in a written contract for the payment of a given sum of money for the purchase and sale of lands,-where a mistake is made by omitting to state the manner of arriving at the amount agreed to be paid, it is competent to allege and prove the mistake in a court of equity, and parol evidence is admissible to prove the same. Ewing v. Sandoval Coal and Mining Co., 110 Ill. 290; Dinwiddie v. Self, 145 Ill. 290; and McFarland v. Williams. 107 Ill. 33.

"When the evidence is fully read and considered, we find it satisfactorily appears that appellee purchased of Jonas McKinstry in his lifetime (he having the equitable title thereto) the two tracts of land in question in this case, agreeing to pay therefor $70 an acre for the tract containing 160 acres, and $65 an acre for the other tract then represented by the vendor as containing 116 acres, making in all the total sum of $18,750, for the two tracts. And when, in pursuance of that agreement, the written contract of sale and purchase set out in the amended bill was made, by mistake of the parties thereto, the same was written up without putting therein the basis of arriving at the amount of the purchase money. The deed set out in the amended bill by mutual mistake of the parties thereto, described the tract west of the right of way of the Illinois Central Bail-road Company as containing 116 acres “ more or less,” when in fact, according to the contract of purchase and sale as actually made, it was warranted by the seller as containing 116 acres, and "while the deed, as made, recited a consideration of only $17,240, the consideration actually paid in cash, notes and indebtedness assumed by Bobert Elliott was $18,740, being the amount provided for by the contract of purchase and sale.

The evidence showing that there were only 100 acres in fact, in the so-called 116 acre tract, the court properly found by its decree that Elliott had paid $1,040 (being $65 per acre for sixteen acres) in excess of what he should have paid for said tract.

The evidence also showing that the estate of Jonas Mc-Kinstry had received in cash from the proceeds of the premises in question, and in increased assets released to it by Lewis L. Lehman, after be received the $18,740 proceeds of the premises in question, which increased assets amounted to more than the said sum of $1,040, the court properly decreed that the appellant, as administratrix of that estate, should pay to Elliott said sum of $1,040 as a preferred claim against the estate, as in equity and good conscience that amount was due him by reason of misrepresentations made as aforesaid; the mistake made in said contract of purchase in said deed; and the payment of that amount in excess of the amount he should have paid, from all of which the estate profited to that extent.

As the evidence showed Felix McKinstry to be a minor, and on that account was under disability to make a deed for his equitable interest in the premises, the court properly decreed that the master in chancery make such deed for him.

Appellant insists that the City Court of IMattoon was without jurisdiction of the subject-matter in this proceeding, but we are of opinion that the statute gives it such jurisdiction. (Paragraph 240 of chapter 37, Hurd’s Eev. Statutes, 3 899.)

Counsel for appellant insists that the two sons of appellee, who were permitted to testify, are shown by the evidence to have an interest in the result of this case, and are, therefore, incompetent witnesses for appellee; but we fail to discover wherein the evidence shows either of them as having such interest.

The court properly refused to decree a reformation of the deed as prayed in the amended bill, because by decreeing payment of §1,040 to appellee from the estate of Jonas ¡McKinstry, deceased, the words u more or less ” in the deed are harmless to appellee, hence the cross-error assigned by appellee is of no force, and the decree will not be reversed or modified on that account.

Finding no reversible error in the proceedings of the trial court in this case, nor in its decree, the latter is affirmed. Decree affirmed.