REPORTS
OF
CASES AT LAW AND IN EQUITY
ARGUED AND DETERMINED
IN THE
SUPREME COURT OF ILLINOIS.
BE-BEPOKTED AND ANNOTATED
BY MARSHALL D. EWELL,
Professor in Union College of Law, Chicago, and author of " Moell on Fixtures," etc.
VOLUME XXXYI.
CONTAINING MOST OP THE CASES DECIDED AT THE APRIL TERM, 1804, AND
HITHERTO UNREPORTED, AND ALL OF THE CASES DECIDED AT THE
NOVEMBER TERM, 1864, AND JANUARY TERM, 1865.
CHICAGO: CALLAGHAN & COMPANY,
1877.
Entneu ^. cording io A. ;t of Congress, in the year eighteen hundred and seventy-seven,
B\ CALLAGHAN & CO.,
In the oJk s vf the Llbia^av; of Congress, at Washington, D. C.
STATE JOURNAL PRINTING COMPANY,
Printers and Stereotypers,
madison, wis.
JUSTICES OF THE SUPREME COURT OF ILLINOIS,
DURING THE PERIOD COVERED BY THESE REPORTS.
chief justice:
PINKNEY H. WALKER.
associate justices:
SIDNEY BREESE.
CORYDON BECKWITH. CHARLES B. LAWRENCE*
• Hon. Charles B. La whence was elected from the Third Grand Division on June 6, 1864, tn the place of Beckwith, J., whose term expired on that day ; and took his seat as a membei ■of the Court at the November term, 1864.
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TABLE OF CASES.
A-
Paok.
Aholtz ads. Kidder 478
Aird 9. Haynie 174
Allen ads. McKoy 429
Altes v. Hinckler 265, 275
Ashley, Town of, ads. Ewbanks, 177
B.
Bach ads. Seibert 195
Baldwin ads. Lemon 53
Ballenger u. McKee 255
Bates v. Courtwright 518
Bear v. Hays 280
Beardstown, City of, v. Moody. . 347
Berry v. The People 423
Bierce ads. Iglehart 133
Black v. Hills 377
Block t. Town of Jacksonville, 301 Block ads. Town of Jacksonville, 507
Bostwick v. Williams 65
Boyd v. Strahan 355
Brainard ads. Rising 79
Brent v. Shook 125
Broad well ads. Strode. 419
Brown ads. Cadwell 103
Brown v. Coon * 243
Brush v. Fowler 53
Buckland v. Goddard 206
Burlingame ads. Guyman 201
Bush ads. King 142
Butler ads. Claycomb 100
c.
Cadwell v. Brown 103
Carver v. Lasater 182
Casey v. Horton 234
Pagb.
Chambers v. Rowe 171
Charleston, Town of, v. McCrory 456
Chicago, City of, v. Ward 9
Chicago & R. I. R. R. Co. v. North. Coal and Iron Co. of
La Salle 60
Chittenden ads. Hopkins 112
Clark ads. White 285
Claycomb v. Butler 100
Cobbs ads. Stacy 349
Colley ads. Whetstone 328
Coon ads. Brown 243
Courtwright ads. Bates 518
Cox v. Montgomery 396
Crabtree v. Green 278
Craig ads. Miller 109
Curtiss ads. Wallace 156
D.
Delancey ads. Duffield 258
Dole v. Olmstead 150
Duffield p. Delancey 258
Duling ads. Edwards 351
Dupuy 0. Gibson 197
E.
Edens v. Williams 252
Edwards v. Duling , 351
Ellet ads. Smalley 500
Erlinger v. The People 458
Eversal ads. Martin 222
Ewbanks v. Town of Ashley ... 177
F.
Fahs ads. Roberts 268
Farrell v. McKee 225
TABLE OF CASES.
Page.
Farwell v. Meyer 510
Ferris v. McClure 77
Finley ads. Thayer 262
Fishback v. Lane 437
Fisher v. Haggerty , 128
Fowler ads. Brush 53
G.
Gibson ads. Dupuy 197
Gibson ads. Grier 521
Goddard ads. Buckland 206
Goudy v. Hall 313
Great West. R. R. Co. v. Hanks, 281
Green ads. Crabtree 278
Gridley ads. Walden 523
Grier v. Gibson 521
Grube v. Nichols 92
Guy man v. Burlingame 201
H.
Haddock ads. Peckham 38
Haggerty ads. Fisher 128
Hall ads. Goudy 313
Hall v. Reber 483
Hanks^s. Great West. R.R. Co. 281
Harvey v. Parsons ... 147
Haynie ads. Aird 174
Hays ads. Bear 280
Headley ads. Lewis 433
Hills ads. Black 376
Hill ads. Prather 402
Hinckler ads. Altes 265, 275
Holbrook v. Nichol 161
Hopkins v. Chittenden 112
Horine ads. Walsh 238
Horton ads. Casey 234
Hull v. Kohlsaat 130
I.
Iglehart v. Bierce 133
J.
Jacksonville, Town of, ads. Block 301
Pagb. Jacksonville, Town of, v. Block. 507
James ads. Miles 399
Jones ads. Mason 212
K.
Kain ads. Lyon 362
Kanouse v. Kanouse 439
Kaufman t. Smallwood 504
Keefer v. Mason 406
Kidder «. Aholtz 478
King v. Bush 142
Kohlsaat ads. Hull 130
L.
Lane ads. Fishback 437
Langley ads. Wright 381
Lasater ads. Carver 182
Lemon v. Baldwin • 53
Lemon v. Stevenson 49
Lewis v. Headley 433
Lott ads. The People 447
Lynch ads. Wickliffe 209
Lyon v. Kain 362
Lucas ads. Silsbe 462
M.
Manning v. McClure 490
Marshall v. Moore 321
Martin v. Eversall 222
Mason v. Jones 212
Mason ads. Keefer. 406
McClure ads. Ferris 77
McClure ads. Manning 490
McConnel ads. Reaugh 373
McCord ads. Power 214
McCormick v. Wheeler ■. . . 114
McCrory ads. Town of Charles- ton 456
McKee ads. Ballenger 255
McKee ads. Farrel 225
McKoy v. Allen 429
Meyer ads. Farwell 510
Miles v. James ^99
Miller v. Craig 109
TABLE OF CASES.
Pagb.
Mixu. White 484
Montgomery ads. Cox 396
Moody ads. City of Beard stown, 347
Moore ads. Marshall 321
Mosheimer v. Ussleman 232
Murphy ads. Willenborg 344
K
Neville v. School Directors .... 71
Nichols ads. Grube. .. . 92
Nichol ads. Holbrook 161
Northern Coal and Iron Co. of
La Salle ads. Ch. & R. I. R.
RCo 60
O.
Oetgen v. Ross 335
Olmstead ads. Dole 150
P.
Parsons ads. Harvey 147
Patterson v. Steele 272
Peckham v. Haddock 38
People ads. Berry 423
People ads. Erlinger. . . 458
People ads. Pidgeon 249
People ads. Smith 290
People v. Lott 447
Pidgeon v. The People 249
Pirkins v. Rudolph 306
Power v. McCord 214
Prather v. Hill 402
Primm ads. White 416
Pulsiferu. Shepard 513
E.
Race ads. Tolman 472
Rankin v. Rankin 293
Rearden v. Smith 204
Reaugh v. McConnel 373
Reber ads. Hall 483
Reed ads. Wheeler 81
Paqk.
Richards ads. Roberts 339
Rising v. Brainard 79
Roberts v. Fahs 268
Roberts v. Richards 339
Ross ads. Oetgen 335
Rowe ads. Chambers 171
Rudolph ads. Pirkins 306
Russel ads. Stow 18
s.
School Directors ads. Neville . . 71 School Directors v. School Di- rectors 140
Seibert v. Bach 195
Shepard ads. Pulsifer 513
Shook ads. Brent. 125
Silsbe v. Lucas 462
Smalley v. Ellet 500
Smallwood ads. Kaufman 504
Smith ads. Rearden 204
Smith o. The People 290
St. Louis, Alton and Terre Haute
R. R. Co. v. Todd 409
Stacy v. Cobbs 349
Steele ads. Patterson 272
Stevenson ads. Lemon 49
Stow v. Russell. 18
Strahan ads. Boyd 335
Strode v. Broadwell 419
T.
Thayer v. Finley 263
Todd ads. St. Louis, Alton and
Terra Haute R. R. Co 409
Tolman v. Race 472
Turney v. Wilton 385
u.
Ussleman ads. Mosheimer 232
w.
Walden v. Gridley 523
Wallace v. Curtiss 156
TABLE OF CASES.
Pass.
Walsh v. Borine 238
Ward ads. City of Chicago 9
Wheeler v. Reed 81
Wheeler ads. McCormick 114
Whetstone v. Colley 328
White v. Clark 285
Whiteaefo.Mix 484
Fags
White v. Primm 416
Wickliffe v. Lynch 209
Willenborg v. Murphy 344
"Williams ads. Bostwick 65
Williams ad s. Edens 252
Wilton ads. Turney 385
Wright v. Langley 381
CASES
DETERMINED BY THE
SUPREME COURT
OF
ILLINOIS.
THIRD GRAND DIVISION.
APRIL TEEM, 1864.
The City of Chicago vs. L. D. Ward et al.
Ee-assessment.1 Under sec. 36, charter of Chicago, for extending a street, independent of regularity of original assessment. Under the 36th section of chapter 7 of the charter of the city of Chica- go (Priv. Laws, 1863, p. 93), — providing that if, from any cause, the city shall fail to collect the assessment which may have been levied, either in whole or in part, and where the same has not been canceled by order of court, the common council may, at any time within five years after the confirmation of the original assessment, direct a new assessment to be made upon the delinquent property for the amount of such deficiency, and interest thereon from the date of the original assessment; and that such new assessment shall be made in the same manner as is prescribed for the first assessment, — where an assess- ment was made for the purpose of extending a street, but owing to the resistance of some of the property holders, a part of it was not collected, and proceedings were then instituted under said 36th sec- tion to re-assess the deficiency on the delinquent property, and appli- cation was made therein for an order of sale, against the granting
1 See, generally on this subject, Cooley on Taxation, 232; Blackw. on Tax Titles (4th ed.), 163 and note.
9
15 OTTAWA,
City of Chicago vs. Ward.
of which it was urged that the original assessment was void for the want of proper notice to the owners of real estate upon which it was levied, and that the Superior Court of Chicago had decided the first assessment void, and refused a judgment to enforce that proceeding, which judgment, it was insisted, was a bar to this application for an order of sale: Held, that the second proceeding, though growing out of the former, was independent of it, and could in no manner be affected by it: and that the second proceedings having been regular, whether the first proceeding was valid or invalid, could not matter, and that the judgment on the first assessment was not a bar to such second application.
Error to Superior Court of Chicago. The case is sufficiently stated in the opinion. B. F. Ayer, for plaintiff in error. Barker c& Tuley, for defendants in error.
[15*] *Walker, C. J. This was an application for a judgment on an assessment roll against real estate in the city of Chicago. The assessment was made to extend Fourteenth street from State street to Indiana avenue. It is urged that the assessment was void, for the want of proper no- tice to the owners of real estate upon which it was levied. It is provided by the 36th section, chapter 7 of the city charter (Private Laws, 1863, p. 93), that if, from any cause, the city shall fail to collect the assessment which may have been lev- ied, either in whole or in part, and where the same has not been canceled by order of court, the common council may, at any time within five years after the confirmation of the origi nal assessment, direct a new assessment to be made upon delin- quent property for the amount of such deficiency, and inter- est thereon from the date of the original assessment. And it declares that it shall be made in the same manner as is pre- scribed for the first assessment.
The third section of chapter seven of the city charter reg- ulates the mode in which the original assessment shall be made. It declares that in cases for the opening of any street, the application shall be made to the board of public works; or, if made to the common council, it shall be referred by 10
APRIL TERM, 1864. 16
City of Chicago vs. Ward.
tliem to the board. And upon receiving such application
they are required to proceed to investigate the same, and if
they determine such improvement to be necessary,
they are required to report the *same to the common [16*]
council, with an estimate of the expense thereof, and
also a proper ordinance or order directing the work to be per
formed.
The fourth section requires them to furnish a plan of the proposed improvement, and whether real estate to be assessed will be benefited to the extent of the damages, costs and ex- penses necessary to be incurred thereby.
The fifth section declares, that when such an order shall be passed by the common council, the commissioners of the board of public works shall forthwith proceed to ascertain and assess the damages and compensation due for land appropri- ated for opening such street. Also, at the same time deter- mine what estate will be benefited thereby, and assess the damages and costs of the proceeding by them deemed benefited, in proportion as nearly as may be done.
The sixth section requires the commissioners to be sworn faithfully to discharge their duties. And it requires them to give six days' notice, by publication in the corporation news- paper, of the time and place of their meeting for the purpose of making the assessment, in which they shall specify what such assessment is to be made for, and shall describe the land to be condemned.
The eighth section declares, that if the damage to any per- son shall be greater than the benefits received, or if the bene- fits be greater than the damages, the commissioners shall strike a balance.
The thirteenth section requires that when completed, the commissioners shall file the assessment roll in the office of the city clerk, and notice be given by them, for six days, by publi- cation in the corporation newspaper, of the filing the same, and that at the next regular meeting of the common coun- cil after such notice is given, they will apply for a confir- mation of the assessment. It also provides that objections
II
IT OTTAWA,
City of Chicago vs. Ward.
may be made before the common council, but they are re- quired to be filed in writing. It authorizes that body to adjourn the hearing from time to time, to revise and correct the same, or to confirm and annul it and direct a new assess- ment.
An assessment was made under these provisions for the pur- pose of extending this street, but owing to the resist- [17*J ance of *some of the property holders, a part of it was not collected. Proceedings were then instituted under the 36th section of chapter seven, to reassess the defi- ciency on the delinquent property, and it is upon this latter proceeding that the application was made in the court below for an order of sale. It will be observed that this section re- quires this second assessment to be made as near as may be in the manner prescribed for the first assessment. The com- missioners reported to the common council the deficiency, with an order for a reassessment on the delinquent property, which was approved and passed by the common council. The commissioners then gave notice to all persons in interest, of the time and place of the intended assessment. After it was made, they published a notice that it had been completed, and that they would apply at the next regular meeting of the com- mon council for a confirmation of the assessment. At that meeting it was confirmed.
To these last proceedings no exceptions are taken. But it is urged that on the first assessment, the notice was given by the board of public works instead of the commissioners of public works, and that a notice was given by the board of public works that they would apply for its confirmation. It is obvious that this second proceeding was independent of and disconnected from the first proceeding. The application was made for an order for the reassessment wThich was passed. The required notices were given and the assessment made and confirmed, precisely as was required by the law, so far as we can see, and as nearly in the manner required by the law in the first assessment as was practicable. We are therefore at a loss to perceive how the first assessment, or the notices 12
APRIL TEEM, 1864. 18
Stow vs. Russell.
then given, can in the slightest degree affect this proceeding. The question is not whether the first was legal, but was the latter? JSTo exceptions are urged to this, but to the first, and they are wholly unavailing.
It is again urged, that the superior court had decided the first assessment void, and refused a judgment to enforce that proceeding, and that the judgment was a bar to this applica- tion for an order of sale. This being a new proceed- ing, ^independent of, but growing out of the former, [18*] can in no manner be affected by it. And whether the first proceeding was valid or invalid, could not matter. This proceeding was designed to cure defects existing in the first assessment, and could only be tested by the law authorizing it to be levied. The judgment on the first assessment was no bar to this application.
We, for these reasons, are of the opinion that the court be- low erred, and the judgment must be reversed and the cause remanded.
Judgment reversed.
William H. Stow vs. Frances Ann Russell et al.
Chancery Pleading : What a demurrer admits}
A. demurrer in chancery only admits that which is well stated or pleaded. It does not admit any matters of law which may be suggested in a bill, or inferred from the facts stated in it. Defects in substance are not supplied or aided by it, nor are defective statements of title or claims for relief cured by it.
Same : Same. General statements in a bill that complainant was induced and prevailed upon by the statements and assurances of the agents of the other party to the contract to leave the original contract with them, and to sign and receive another agreement whose effect it is sought to escape, are not admitted by a demurrer, where no specific fact or facts are
^ee People v. Hatch, 33 III., 9: Myers v. Wright, id., 284; Deem v. Crume, 46 id., 69; Lindley v. Miller, 67 id., 244; Dunham v. Village of Hyde Park, 74 id., 371 ; Roby v. Cossitt, 78 id., 638.
13
20 OTTAWA,
Stow vs. Russell.
charged of an improper character, or unworthy or disreputable means used to induce the making of such other contract.
Same: Same. Nor would a general allegation of error in the amount of the claim. set up by the defendant, no fact being stated showing such error or its extent, nor any error in computing such amount, be admitted by de- murrer, because it is not well pleaded. In such a case nothing spe- cific or tangible is stated, which can be denied by answer, and nothing is distinctly and unequivocally asserted demanding denial or answer.
Contracts: A subsequent contract concerning the same subject matter, con- strued to be a new contract and not an extension. Where a contract was entered into between R. and S. for the sale of land for a certain sum, several installments of which were paid, which contract contained no clause making time of the essence of the con- tract, nor providing for forfeiture on default; and subsequently, S. being in default as to his payments, another agreement in writing was executed by the parties, whereby R. agreed to sell the premises to S. for a larger sum than that previously stipulated, and wherein, besides other stringent stipulations, time was made of the essence of the con- tract, which second agreement made no reference whatever to the prior agreement, and contained no intimation that it was designed as an extension of such prior contract : Held, that such new agreement was not merely an extension of the prior contract, but was a new con- tract, and being the last act of the parties, must be held to contain and express their true meaning and intentions ; and that the contract be- tween the parties was evidenced by such last instrument and by it alone.
Specific Performance: What the party seeking it must show.
A party can not compel the specific performance of a contract in a court of equity, unless he shows that he himself has specifically performed all the acts which formed the consideration for the undertaking on trve part of the defendant, or can justly account for his non-perform- ance.
Same : Where time is of the essence of the contract}
Parties have a right to make the time of the performance of a contract
material; and although as a general principle in equity, time is not
material, where by express stipulation of the parties time is made of
the essence of the contract, a court of equity has no right to disregard
1 See Tyler v. Young, 2 Scam., 444; Dennis v. McCagg, 32 111., 429; Wyn- koop v. Cowing, 21 id., 571 ; Cunningham v. 111. Cent. R. R. Co., 77 id., 178; Morgan v. Herrick, 21 id., 481; Glover v. Fisher, 11 id., 666; Bishop v. Newton, 20 id., 180; Murphy v. Lockwood, 21 id., 611; Milnor v. Willard, 34 id., 38; Heckard v. Sayre, id., 142; Sanford v. Emory, id., 468. 14
APKIL TEEM, 1864. 21
Stow vs. Russell.
it and enforce its specific performance contrary to the clearly ex- pressed intention of the parties.
Same : Justification or excuse for delay must be shown. A specific performance will not be compelled in equity where the party seeking it has omitted to execute his part of the contract, by the time appointed, without assigning any sufficient justification or excuse for his delay, and where there is nothing in the acts or conduct of the other party that amounts to an acquiescence in that delay.
Same : Same.
Inevitable accidents may perhaps be ground for relief in cases where time is of the essence of the contract; but where the only excuse shown by the purchaser for not making his payments at the time stipulated, was losses in business and deprivation of rents occasioned by the burning of buildings erected by him upon other property, to the erection of which he had devoted means that should have been applied in discharge of his contract, it was held., that the excuse was not sufficient.
Same : Not granted where complainant neglects to make defense at law. Where a judgment in ejectment is recovered by the vendor against the purchaser in possession, such purchaser, neglecting to make the de- fense at law, can not subsequently maintain a bill for a specific per- formance of the contract on the ground of his having taken possession under the contract, made valuable improvements, paid taxes, and paid or at the proper time tendered the amount contracted to be paid for the land.
Contracts : Waiver of provision making time of the essence of the contract A failure to make the payments, on the day stipulated in a contract mak- ing time of the essence of the contract, will be waived by their accept- ance after the day stipulated.
Tender : Must be kept good.1 A debtor is bound at all times to be prepared to meet a demand for money that he may have tendered ; in other words, he must keep his tender good ; and if he fails to keep it good, upon being subsequently informed that it will be accepted, he thereby places himself in de- fault and loses all the benefit of his tender.
Same : Stops the running of interest. If a creditor refuses money tendered by a person having the right to
1 See DeWolf v. Long, 2 Gilm., 679; Doyle v. Teas, 4 Scam., 202; Wright v. McNeely, 11 111., 241 ; Sloan v. Petrie, 16 id., 262 ; Webster v. Pierce, 35 id., 158; Pulsifer v. Shepard, 36 id., 513; Wood v. M. S. L. & T. Co., 41 id., 267 ; Stow v. Russell, 36 id., 18. As to when the money tendered must, in chancery, be brought into court, see Webster v. French, 11 111., 254; Su- pervisors v. Henneberry, 41 id., 180.
15
22 OTTAWA,
Stow vs. Russell.
make the tender, interest will cease to run from the time of the ten- der, especially if the debtor keeps the money continually ready, and makes no profit by it.
Ejectment : By vendor against purchaser in possession.
The action of ejectment proceeds for the possession of the premises, claiming that they have been unlawfu ly entered into and unjustly withheld. Facts which go to disprove these make a legal defense.
In an action of ejectment, therefore, by the vendor against the pur- chaser in possession under a contract for the purchase of land, proof of the contract, taking possession, making valuable improvements, paying taxes, and paying or tendering at the proper time the amount contracted to be paid for it, amount to a legal defense.
Landlord and Tenant: Destruction of premises by fire. In the absence of a stipulation in the lease to the contrary, a tenant is bound to pay the stipulated rent, although the building on the prem- ises is consumed by fire while in his possession.
Parties in Chancery : Complainant must show an interest. A purchaser of land who has, by reason of his default in making the payments therefor due under his contract, forfeited all right thereto, has no ground of complaint as to the irregularity of the proceedings attending the seizure and sale of such land on execution against him. He can not complain if the property of another person has been sold to discharge his own debt.
Error to Circuit Court of Cook County. The case is sufficiently stated in the opinion of the court. Arthur W. Windett, for plaintiff in error. Scammon, Mc- Cagg dh Fuller, for defendants in error.
[22*] *Breese, J. Samuel Russell, of Middletown, Connecti cut, being the owner of lot nine, in block twenty-eight, in the orginal town of Chicago, " sometime in 1846 or 1847 " made a contract in writing with the plaintiff Stow, by which he agreed to sell to him this lot, for the sum of " six or seven thousand dollars.7' Of this sum one thousand dollars was paid down, and the balance was to be paid in equal annual install- ments, with interest at six per cent.
On the execution of the contract, the plaintiff took posses- sion of the lot, and made valuable improvements on it at a cost of several thousand dollars, and for many years carried 16
ARRIL TERM, 1864. 23
Stow vs. Russell.
on a foundry on the lot, with the consent and approbation of Russell and his agents.
*The installments due in 1847 and 1848 were paid [*23] by plaintiff, and about one-half the installments due in 1849 ; the balance for that year, and the installments for 1850 and 1851, were not paid.
In the summer of 1852, Russell pressed for payment, threatening a suit, or proceedings to terminate the contract. The payments were not met, whereupon, it is alleged, the time of payment was extended by Russell, on the terms that plain- tiff should pay Ogden and Jones, the agents of Russel, one thousand dollars in hand, and that thereupon they should ascertain and make a statement to complainant of the amount of payment made, and of what remained to be paid, under the contract, both principal and interest, if any; that upon the amount so ascertained, plaintiff should pay interest at ten per cent, until it should be paid ; that plaintiff might begin four months thereafter, by paying two hundred dollars of the unpaid balance, and so on, two hundred dollars a month, un- til all should be paid. The agreement actually made and con- cluded by the parties, signed and sealed by them, bears date August 2, 1852, and purports to be made at the request of the plaintiff. It shows, in consideration of the money to be paid and the covenants expressed in it, to be performed by the plaintiff, the prompt performance of which payments and cov- enants being a condition precedent, and time being of the es- sence of the condition, that Russell agreed to sell to the plaint- tiff lot nine, in block twenty-eight, and in consideration of the premises, the plaintiff agreed to pay the party of the first part, at the office of Ogden, Jones & Co., in Chicago, the sum of seven thousand two hundred and seventy-seven dollars and fifty cents, in certain monthly installments of two hundred dollars each, and seventy-seven and fifty one-hundredths dol- lars on the first day of December, 1855, the term of credit be- ing about three years and four months.
Russell covenanted, that upon the faithful performance, by the plaintiff, of his undertakings, and of the payment of prin- Vol. XXXVI. — 2 17
24 OTTAWA,
Stow vs. Russell.
cipal and interest of the sum stipulated, in the manner speci- fied, he would, without delay, execute, acknowledge and [24*] deliver, in person, or by attorney, duly authorized, to the plaintiff in error, his heirs or assigns, a deed of conveyance, etc. And it was mutually covenanted and agreed, that in case default should be made in any of the payments of principal or interest, at the time or any of the times speci- fied for the payment thereof, and for sixty days thereafter, the agreement, and all its provisions, should be null and void, and no longer binding, at the option of the party of the first part, his representatives or assigns, and all the payments which should have been made, absolutely and forever forfeit- ed to the party of the first; or, at the election of that party, his representatives and assigns, the covenants and liability of the plaintiff in error should remain obligatory upon him, and might be enforced, and the consideration money collected, etc.
It was further agreed, if Russell elected, in default of pay- ments, to declare the contract at an end, and prior payments forfeited, the plaintiff, if in possession, was to be held and deemed the tenant at will of the party of the first part, at a rent equal to an interest of ten per cent, per annum on the whole amount of the purchase money. It was further stipu- lated, if there was a default in any payments for fifteen days after the same were due and payable, then the whole purchase money became due and payable.
On this agreement, the plaintiff made the first payment, falling due December 4, 1852, of two hundred dollars, and also other payments some time after they had become due, extending up to September, 1854, since which time no pay- ments appear to have been made.
On the twenty-fifth of March, 1856, the plaintiff was no- tified in writing, by the agents of Russell, that in conse- quence of his defaults in his several payments and for sixty days after they were due, and in default of payment of the whole sum due, which became due and payable by the default in the payment of the several installments, and for fifteen days after they were due and payable, Russell had elected to 18
APRIL TERM, 1864. 25
Stow vs. Russell.
forfeit the contract, and the payments made on it, and to declare the contract null and *void, and he did [25*] thereby declare the contract, and the payments made on it, forfeited, and the contract null and void.
Soon after this notice, in the same year, Russell brought his action of ejectment in the circuit court of the United States, against the plaintiff, to recover the possession of the premises, and a verdict and judgment was rendered in favor of Russell; and in July, 1861, after five years litigation, he was put in possession of the premises by the marshal, and now holds them.
In December, 1862, the plaintiff filed his bill in the circuit court of Cook county, setting out these facts, and states as the reason why he did not make the payments, due on the original contract for the years 1849, 1850 and 1851, that he " had become involved, through making large improvements upon his property, on the opposite corner to the lot in ques- tion, and in consequence of losses in business, and failure to receive payments due, on which he had depended."
He also alleges, as to the agreement of August 2, 1852, that Russell's agents caused him to believe that it was, in all re- spects, fair and correct, and for fear of losing the benefit of his purchase and the payments already made thereon, " under the pressure of his embarrassed circumstances at the time," he was " induced and prevailed upon by the statements and assurances of Russell's agents, to leave with them the original agreement of 1846, and to sign and receive the agreement of August 2, 1852." The bill also states, when he expressed surprise at the magnitude of the amount due — $7,279.50 — on the assurance of the agents that they had allowed him all credits and payments, and had carefully computed the in- terest, and that the sum specified was the exact and true sum which would have to be paid on the original contract as mod- ified and extended, and on the assurance, if there was any error, it should be rectified when discovered, and plaintiff in no way prejudiced, he accepted and executed the agreement; and that, on complaining afterwards to the agents and to
19
26 OTTAWA,
Stow vs. Russell.
Russell, of errors in the amount, they agreed and promised, on a final settlement, to make all proper corrections, credits, allowances and abatements. The bill also then goes on [26*] to allege, that in good faith, with the ^purpose and de- sire of completing the contract, he paid the first " ex- tended " payment of $200, December 4, 1852, and subse- quently, at divers times, in separate sums of $200 each, up to and including June 11, 1853, one thousand dollars, and other payments up to September, 1854, as before stated.
In accounting for the delays in making regular payments, the plaintiff refers to unlooked for disappointment in receiv- ing payment of his rents and moneys due him in his business, on which he had depended, and to the known liberality of the agents in giving extensions of time, and " showing indulgence to purchasers who might require it — that it was not their practice to take advantage of accidental delays in order to de- clare a forfeiture, when such delays were not unreasonable or perversely incurred," etc.; and in further explanation of the delay, and as ground of relief, he states that in April, 1854, he " lost by fire his extensive buildings," and his income from the rents thereof, about three thousand dollars a year, on which he had relied when making his arrangements for the completion of the contract and purchase.
The bill further states, that during the temporary absence of plaintiff, his wife, about the 18th of January, 1855, ten- dered to the agents of Russell four hundred dollars on ac- count, which they refused to receive, they then declaring that they would not receive any further partial payments on the contract, and notified her that they claimed the whole unpaid balance of the purchase money to be then and at once due, and demanded payment thereof immediately, which was wholly unexpected and a surprise to the plaintiff.
The bill then states, that in consequence of this refusal to receive any more partial payments, plaintiff forbore, and was prevented from making any further payments thereon, until December 1, 1855, when the last payment of seventy-nine and fifty one-hundredths dollars became due, and on that day 20
APKIL TERM, 1864.
Stow vs. Russell.
plaintiff tendered and offered to pay the agents of Russell, at their office during the usual hours of business, the sum of three thousand nine hundred and fifty-one and thirty-five one- hundredths dollars, in full payment of all moneys due and then ^"remaining unpaid in gold coin of the United [27*] States, and produced and exhibited it, and demanded a deed, which they refused to accept. And the plaintiff further alleges, that at the same time and place he made a tender and offer of payment to these agents of the sum of four thousand four hundred and twenty-six and one one -hundredth dollars, in like gold coin, and which was then and there shown to them, and in readiness to be paid to them, in full payment of all that was due and unpaid on the contract, and which " your orator demanded and asked them " to accept and receive in payment, and give him a deed, all which was refused. That he did not admit that amount was due, but was willing to pay it.
The bill then states, that upon this refusal, he deposited the money in the Commercial Bank of Chicago, then in good credit, to be in readiness for use in making the payment when- ever called on, where it remained until, when in the month of March thereafter, one of the agents, in a casual meeting in the street, on the Sabbath day, informed plaintiff that they were instructed by Russell to receive the money on the con- tract and execute a deed, which the agent said he was ready to do; that on the next day, Monday, when plaintiff went to the bank to draw his money and make the payment, he was told by the cashier that the bank had that morning stopped pay- ment, and failed that day and proved insolvent. Plaintiff', however, was enabled to get his deposit, after several years, except about seven hundred dollars.
The bill further states, that no lawful or actual demand of payment of the balance of the purchase-money was thereafter made, and that Russell never tendered a deed, etc.
The bill then states the notice, of the 25th March, 1856, of the election of Russell to declare the contract forfeited, and the ejectment suit and proceedings thereon, wherein the bill states
21
OTTAWA,
Stow vs. Russell.
" that upon trial of the suit in ejectment, the presiding judge held, if plain tiff would then pay into court the unpaid balance of the money, he would require Russell to receive it, and to give a deed," but that, plaintiff, "by reason of the matters
aforesaid," was unable to do. [28*] The bill then sets out the proceedings on the judg- ment against him on the note he had given his attor- ney to defend the ejectment suit, which it is unnecessary to particularize.
The bill prays that Russell may be compelled to render an account of rents received for the premises since he was put in possession ; " that an account of all the matters in the bill stated may be come to;" that it maybe declared how much is in equity payable from plaintiff to Russell under the agree- ment; that the contract of August 2, 1852, may be reformed in respect of any money improperly inserted therein as usur- ious interest, and other matters, mistakes or errors therein; that the contract may be made to conform to the original in- strument, as modified by the agreement for its extension; that all just credits and deductions being made, the plaintiff may be entitled to a specific performance of the agreement, and be relieved from all pretended forfeitures and defaults; and that upon paying what shall be due, on a balance being struck, a deed may be given, executed by the proper parties; that the fraudulent levy and sale may be set aside and canceled; also the sheriff's deed, or that the title sought thereby to be created may be conveyed to plaintiff, he paying 1he full amount of sale, interest and costs ; and for general relief.
The defendants filed a general demurrer to the bill for want of equity on' the face of the bill. This demurrer was sustained and the bill dismissed without prejudice to any right of action the plaintiff might have in the premises against the defend- ants or either of them. The case is brought here by writ of error, and the ruling of the court is assigned as error.
The first question presented for consideration is, as to the operation and effect of the demurrer. The plaintiff insists, that as it admits the facts charged to be true, the relief prayed 22
APEIL TEEM, 1864. 29
Stow vs. Russell.
for should be granted, those facts presenting equities of the strongest character. We understand, in chancery, a demurrer is always to the merits, and in bar of the relief sought, and pro- ceeds upon the ground that, admitting the facts stated in the bill to be true, the complainant is not entitled to the relief he seeks. It is always founded upon some strong point of law Agoing to the