Keyes v. Binker

Opinion of the Court, the

Hon. Carroll C. Boggs, Judge.

The wording of the contract is somewhat peculiar and its meaning for that reason is not so readily determined; but when all of its provisions are considered together and in proper connection we think the duties, rights and obligations of the respective parties satisfactorily appear.

As we construe it, the appellees contracted to sell to the appellant the premises described, and obligated themselves to convey the same to him by warranty deed within ten days, upon the payment of balance of the purchase money. The appellant, by the contract, became obligated to receive the deed and pay the money therefor at any time within said period of ten days, when the appellees might choose to offer it to him, if the title of the appellees, upon examination, proved to be good. Thus it is seen the appellant was required to be ready at all times during the ten days after he had examined the title to accept the deed and make payment therefor.

By tendering the balance of the purchase money he waived all question as to the sufficiency, of the title, and in effect announced to the appellees that he was ready, willing and able to complete the transfer of the property. He could not know whether they were ready upon their part. If they were not, it became incumbent upon them to take such steps as might be necessary to enable them to perform their undertaking within the time limited, and when so ready to advise the appellant, to deliver him the deed and receive the money which they knew he was holding for them.

After having once tendered the money, a readiness and ability to comply, accept the deed and pay the money at all times within the ten days, is all that ought to be required of the appellant.

As to the rule in such cases, see 2 Parsons’ Contracts, page 677; Hough v. Rawson, 17 Ill. 588 ; 3 Amer. and Eng. Ency. of Law, page 910, and note 1.

The declaration, though inartistically drawn, substantially states that the appellant made the tender, and during all the time in question thereafter was ready and willing and prepared to pay the money and take the deed, and that the appellees failed and refused to comply with their agreement to deliver the deed, not only when he tendered them the money but also during all the time of the ten days mentioned in the contract and until the beginning of the suit.

We do not think an allegation of a promise by appellees to pay damages which the law would impose upon a breach of the contract is at all necessary to a good declaration.

When the action of assumpsit is on an undertaking which the law presumes to have been made because of certain acts, or the conduct of a party, though he has actually made no promise, the accepted form of pleading requires an averment of liability because of the acts, and of a promise which the law implies from the existence of the liability. When the action is brought on an express contract to do a certain act, no allegation of an implied promise is necessary. Wait’s Actions and Defenses, Vol. 1, pages 370 to 376.

The demurrer should not, in our opinion, have been sustained, but should have been overruled.

The judgment must be reversed and the cause'remanded, with instructions to overrule the demurrer and require the appellee to plead to the declaration.