Department of Public Works & Buildings ex rel. People v. Halls , 63 Ill. App. 2d 304 ( 1965 )

SMITH, P. J.

While the pleadings and the number of parties would seem to indicate numerous complexities, only one question is presented for review and it can be simply stated: Was an option to purchase real estate properly exercised ? It reads:

“7. AND, IT IS HEEEBY FUETHEE AGREED by and between said parties, that lessee shall have the right and option to purchase said above described premises for the sum of TWENTY-FIVE THOUSAND DOLLAES ($25,000.00), at any time during the term of this lease.”

Lessee decided to purchase the premises and notified lessor as follows:

“YOU AEE HEEEBY NOTIFIED that I have elected to exercise the option to purchase the real estate described in that certain lease dated the 23rd day of June, A.D. 1955 by and between Vera A. Garowski as lessor and the undersigned Charles Jordan, as lessee, the real estate being more particularly described as follows: [Describing same] the said lease providing that the option could be exercised at any time during the term of the lease, which was a period of ten (10) years from the 1st day of July, 1955, at the purchase price of Twenty-five Thousand ($25,000.00) Dollars.

“The abstract should be submitted to my attorney, Charles E. Young, 500 McMullen Building, Dan-ville, Illinois, for examination, and the purchase price will be available upon the furnishing of a merchantable abstract of title and warranty deed.”

For a proper exercise, lessee must accept in toto the conditions contained in the option and he cannot add new ones of his own. Lessor says he did, indeed, add new ones—that she furnish a merchantable abstract of title and warranty deed—and hence she need not perform. With this the trial court agreed, and lessee appeals.

An option is defined as a right acquired by contract to accept or reject a present offer within the time limited. If an optionee does signify his acceptance of an offer within the time limited and upon the terms stated, the obligations become mutual and are capable of enforcement at the instance of either party. Nothing is said expressly in this option as to the character of the deed, or for that matter any deed, nor is there any allusion apropos of a merchantable abstract of title. Should lessee, in exercising this option, have signified his acceptance and delivered $25,000 to lessor and let it go at that? What if after lessee had done just that but fee simple title had not been immediately put in him, could he have changed his mind? Or what if after a conveyance of some sort, lessee had discovered that his title was something less than fee simple, could he have backed away, or would lessor be given a reasonable time to remedy the defect? By these few questions, and we could posit many more, we are suggesting, what we all know, that all agreements, options included, have implied promises or conditions, even including those that purport to cover every conceivable situation, and indeed, say so. As Chief Judge Cardozo remarked in Wood v. Lucy, Lady Duff-Gordon, 222 NY 88, 118 NE 214 (1917):

“The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view today. A promise may be lacking, and yet the whole writing may be ‘instinct with an obligation,’ imperfectly expressed.”

It is true, of course, that lessor did not promise in so many words that she would give a deed or furnish merchantable abstract of title, but we think that such, or their equivalents, can fairly be implied. To put legal, as opposed to equitable title, in lessee, requires some type of legal conveyance. The fact that lessee happened to request a warranty deed, in our opinion, does not provide lessor with a convenient loophole to avoid her promise. We are not saying that lessor need furnish a warranty deed as such—only that she find some legal vehicle to get the job done. It is an implied promise or condition. So too, with regard to furnishing a merchantable abstract of title. Her promise was to put fee simple title in lessee and she can give him such assurance in any reasonable way she can find. She is not bound, however, to do it this way, but she must do it. It is also an implied condition or promise. Lessee’s so-called “counter-conditions,” are in reality only suggested ways and means by which his purchase of the premises can be appropriately effected by lessor. They are not iron-bound and double riveted, pre-conditions that must be met by lessor. By the same token, assuming performance by lessor by some other way, their lack would not prevent her from enforcing payment by lessee.

While Morris v. Goldthorp, 390 Ill 186, 60 NE2d 857, is seemingly at odds with the view we take, there are easily distinguishable features. For one thing, the request for warranty deed in Morris would have compelled the optionor to warrant title as against certain outstanding past due assessments which the option required the optionee to pay. It was an offer to buy the property upon conditions entirely different from the conditions of the option. This distinction is carefully and specifically noted in Gaskins v. Walz, 409 Ill 40, 97 NE2d 798, a case more akin to the circumstances before us. There, as here, the first sentence of the acceptance was an unequivocal exercise of the option. Concerning this, the Supreme Court said:

. . There is no condition attached, and the mere request in a later sentence for delivery of an abstract of title showing good and merchantable title is in no way a condition of the acceptance. When that request was made, the acceptance was final and irrevocable. . . .

“. . . It would seem that the sensible view is that for the demand to invalidate the acceptance it must amount to a qualification or a condition imposed as a part of the acceptance itself. Here there was no condition or qualification so imposed. The acceptance was specific, certain and unconditional. The demand for an abstract showing merchantable title was made in reference to what should happen as to performance during the period of the executory contract. . . .”

This language is decisive of the case at bar. We think lessee properly exercised the option and we view lessor’s stance as strained. The option reads that the lessee can purchase the premises. We cannot agree that lessee in any way added new conditions to the option by suggesting to lessor appropriate avenues to that end.

Actually tbe type of deed and the evidence of ownership are now pretty much academic as a result of subsequent events. The Department of Public Works and Buildings filed its condemnation suit on August 26,1963, seeking fee simple title to this property and made as parties appellants as lessees and appellee as lessor and on the same day filed its petition for immediate vesting of title. On September 4, appellants gave notice of the exercise of their option to purchase. The Department and the parties hereto stipulate in writing that the right of eminent domain was properly exercised and the amount of preliminary just compensation was $45,000. On October 2, the Department deposited 125% of this amount as required by statute and an order vesting title in the State was entered. Appellants then filed their petition alleging the exercise of the option and the ownership of the $45,000. Appellee answered with appropriate denials and filed her cross-petition seeking withdrawal of the funds on the theory that appellant imposed conditions on the exercise of the option which amounted to a counter-proposal and, not having exercised the option in accordance with its terms, the option was void and she was entitled to the $45,000. It will be observed that the lease and the option were more than 9 years old at the time of these events. These recitations are apropos of nothing except to furnish window-dressing for the conduct and positions taken hy the respective parties. Appellee seeks only to avoid the consequences of her contract. Where the option is silent as to the quantum of the estate “it amounts to an undertaking to convey a complete title in fee simple, free and clear of incumbrances” and the failure to specify in the option the time for performance implies a reasonable time. 91 CJS Vendor and Purchaser, Par 8. We think the option reasonably implies some sort of conveyance and some sort of evidence of ownership; that such was within the reasonable contemplation of the parties; and that the type of deed and the evidence of ownership related to suggested means to a performance of the contract to sell and not to a conditional acceptance of the option.

Accordingly, the order appealed from is reversed and the cause remanded with directions to enter judgment for the lessees and for such further orders not inconsistent with this opinion.

Reversed and remanded with directions.

CRAVEN, J., concurs.