Powell v. Huey , 1908 Ill. App. LEXIS 354 ( 1908 )

Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

Although the evidence relative to the execution of the alleged contract sought to be enforced is in close conflict, we are of opinion that the testimony of appellee and S. H. Ferris was sufficient to warrant the chancellor in finding that the same was not knowingly executed by Huey, but that he understood he was signing an application for a loan upon his farm and the Coke farm, in case he decided to take the land, and that he was induced to sign the same through trickery and device practiced by William A. Powell. Furthermore there is evidence tending to prove that the terms thereof were so unconscionable and inequitable as to justify the chancellor in refusing to enforce the same. The Coke farm was valued in the alleged contract at $125 an acre, while the evidence tends to show that it was worth not to exceed $80 per acre.

Where a chancery case is heard in open court on oral testimony and the evidence is conflicting, the findings of the chancellor will not he reversed unless error is palpable. Dyas v. Dyas, 231 Ill. 367.

“A specific performance of contract will only be enforced where the terms are clear, certain and unambiguous, either admitted by the pleadings or proven with a reasonable degree of certainty by the evidence. Even in cases where all of these requirements are present, specific performance is not a matter of right, but rests in the sound discretion of the court, to be determined from all the facts and circumstances of the particular case. Specific performance is an equitable remedy which compels such substantial performance of the contract as will do justice between the parties. Inflexible rules cannot be laid down for the exercise of the power of a court of equity in granting specific performance. Every case of specific performance necessarily depends in a large degree upon its own special circumstances. In such proceedings the inquiry must be whether in equity and good conscience the court should specifically enforce the contract, and the decision involves the hearing of evidence of extrinsic facts. It is never decreed as a matter of course, even when a legal contract is shown to exist.

“If then the contract itself is unfair, onesided, unjust, unconscionable, or affected by any other inequitable feature; or if its enforcement would be oppressive or hard on the defendant, or would prevent his enjoyment of his own right, or would work any injustice; or if the plaintiff has obtained it by sharp and unscrupulous practices, by over-reaching, by trickery, by taking undue advantage of his position, by non-disclosure of material facts, or by any other unconscientious means, then a specific performance will be refused. It necessarily follows that a less strong case is sufficient to defeat a suit for a specific performance than is requisite to obtain the remedy.” Sugar v. Froehlich, 229 Ill. 297, and cases cited.

Without extending this opinion by further detailing or discussing the evidence contained, in the record, we are impelled to hold that the chancellor did not err in dismissing the bill for specific performance.

It is urged as ground for the reversal of the decree of foreclosure that there is a variance between the allegations of the bill and the evidence; that the bill being in the ordinary form of bills to foreclose, does not correspond with the proofs, which show that the mortgage and notes were given for the purpose only of indemnifying Huey against any loss or damage by reason of his having signed a note or notes as surety for William A. Powell.

“A bill of foreclosure, although it does not show the real consideration for or the precise amount due upon a mortgage, will authorize a decree, although the proofs may show a less sum to be due than was claimed, or a state of facts not averred in it, if these facts are not incompatible with the allegations in the bill.” Collins v. Carlile, 13 Ill. 254.

It is also insisted that the mortgage which it is sought by the bill to foreclose was not due at the time the bill was filed, nor at the time of the entry of the decree of foreclosure; that notwithstanding the interest notes had matured, the mortgage having been given for the purpose of collateral security, did not mature until September 24, 1908.

By the express terms thereof, the interest notes payable on September 21, 1904, 1905, and 1906, respectively, were past due on January 21, 1907, upon which date the bill was filed. Appellee therefore had the right to exercise his option under the terms of the mortgage and declare the principal sum also due. If the mortgage be treated as one of indemnity only, as we think it should, and its literal effect disregarded, it is obvious that when the mortgagee was compelled to pay any part of the indebtedness against which he was indemnified, the real mortgage indebtedness may be properly held to have, to that extent, matured, without regard to its express terms.

The evidence shows that prior to the time the bill to foreclose was filed, appellee was compelled to pay the Talbot note of $800 upon which he was surety for William A. Powell; that on September 25, 1905, he paid the sum of $2,884.90 on account of the note given by him to the Union National Bank as collateral to the note of William A. and Ira S. Powell upon which there was then due with interest the sum of $5,310; the balance due being the basis of recovery in the assumpsit suit hereinbefore referred to, and that he on November 2, 1906, paid the note to Ira S. Powell for $4,541.27 to the Hancock County National Bank upon which he was also surety. It follows that under either theory, the bill to foreclose was not prematurely filed as contended by appellants. The aggregate of said payments represents the amount for which the decree was rendered.

There is no merit in the contention that the note of Ira S. Powell to the Hancock County National Bank should not be held to be covered by the indemnity. The evidence shows that William A. Powell received the proceeds thereof and in such case it can be properly held that he is equitably liable therefor.

Under the foregoing views there was no valid defense to the assumpsit suit and the judgment therein entered for the balance due appellee on account of his payment of the Union National Bank note was proper.

The decree of foreclosure was warranted and is affirmed.

Affirmed.