Bolton v. Johnston

Mr. Presiding Justice Waterman

delivered the opinion of the Court.

It is contended by appellant that the insertion in the contract of the provision that “ if title is not good and satisfactory, this $100 to be refunded to said Johnston, and to be forfeited to me if said Johnston shall fail to carry out this contract on his part,” shows that the intention of the parties was, that if title was not found to be good and satisfactory, the only right of the vendee would be to a return of the $100 deposited by him, and that he consequently has no right of action for damages on account of a failure by appellant to convey such title and land as he had contracted to give.

We regard this case as falling within the rulings of the Supreme Court in Hale v. Cravener, 128 Ill. 408; Hunt v. Smith, 139 Ill. 296, and Lancaster v. Roberts, 144 Ill. 213.

It is true that these were chancery causes; but contracts are construed in actions at law the same as in chancery. The meaning of a contract does not depend upon the forum in which its enforcement is sought.

In the case of Lancaster et al. v. Roberts et al., 144 Ill. at page 224, the court say:

“ It is claimed on behalf of the appellees that the demurrer to the bill was properly sustained upon the alleged ground that the only remedy which the purchaser named in the contract can resort to, is a suit at law for the amount of the cash deposit made at the time of the execution of the agreement.”

“ This contention is based upon that clause in the contract which provides that ‘ in case the title upon examination is found materially defective within ten days after said abstract is furnished, then unless the material defects be cured within sixty days after written notice thereof, the said earnest money shall be refunded and the contract is to become inoperative.’ ”

A condition in a contract of sale, by which the contract is to be void in case the vendor can not deduce a good title, is to be taken most strongly against the vendor, because he alone is able to judge of the necessity or propriety of making the condition before he offers the property for sale. Greaves v. Wilson, 25 Beav. 290; Page v. Adams, 4 Beav. 269. Such a condition gives an option, not to the vendor, but to the purchaser, to avoid the contract for failure to deduce a good title. Roberts v. Wyatt, 2 Taunt. 268.

In the recent case of Hale v. Gravener, 128 Ill. 408, the contract contained the following provision : “ In case the abstract of title furnished as aforesaid does not show a good title, as herein stated, then the $500 this day paid thereon shall be returned to said first party and this contract determined,” and we there held that said provision was designed for the benefit of the purchaser and could not be taken advantage of by the vendor, because the latter was presumed to know the title, while the former did not know it. If it were otherwise, a vendor might purposely neglect to furnish a good title, thereby relying upon his own default in order to accomplish a rescission of the contract by merely, returning the earnest money.”

For the reasons thus announced the judgment of the Superior Court is affirmed.

Mb. Justice Gaby:

I doubt, but will not take space to show how I think this case is distinguishable from those cited.