Steele v. Biggs

Breese, J. There are but two questions we consider very material in this case. The first is, was time of payment of the essence of this agreement; and the other is, did the defendant, or any authorized person for him, make a legal tender of the .payment in money, as required by the terms of the agreement. The appellee denies that time was of the essence of this con-i tract. To determine it, we must look to the agreement and its several clauses relating to this point. The clauses provide as .follows: “ It is mutually covenanted and agreed between the parties thereto, that in case default is made in any of the payments of principal or interest at the times above specified, for payment thereof, and for sixty days thereafter, this agreement, and the provisions thereof, shall be null and void, at the option of said Lunt, his representatives or assigns, and all the payments which . shall then have been made hereon, or in pursuance hereof, abso.lutely and forever forfeited to said Lunt, or, at the election of said Lunt, his representatives or assigns, the covenants and liability of said McCullough, shall remain obligatory upon said McCullough, and may be enforced, and the said money, with the interest, be collected by proper proceedings at law or equity, from said McCullough, his executors, administrators or assigns. “ It is further mutually covenanted by the parties that in case of default in the payments aforesaid, by said McCullough, or any part thereof, and the election of said Lunt, his representatives or assigns, to consider the contract at an end, and prior payments forfeited, the said McCullough, his heirs, representatives or assigns, who may have possession, or the right of possession of said premises at the time, shall be considered the tenant or tenants at will of said Lunt, his representatives or assigns, on a rent equal to ten per cent, per annum, on the whole purchase money above specified, payable quarterly from day of default. “ And after such default, and election to consider the contract at an end, the said Lunt, his representatives or assigns, shall have all the powers and remedies provided by law or equity, to collect such rents, or to remove such tenants, the same as if the relation of landlord and tenant, hereby declared, were created by an original, absolute lease, for that sole purpose, on a specified rent, payable quarterly on a tenure at will,” etc. These being the terms of the contract of the parties, it would be difficult, we think, to make more clear and explicit the intent of these parties to make time essential. The case of Bishop v. Newton, 20 Ill. R. 180, to which the appellee has referred, in which similar provisions to these were contained in that contract then before us, does not hold, nor was it intended to hold that they do not make time material. Time was there made material by the clause declaring that “ if said Bishop fails to make payment within fifteen days after the first day of January, 1856, he forfeits what he has paid, and all rights under this bond.” But there was in that agreement, a precedent or concurrent condition to be performed by the vendor, in relieving the premises of an incumbrance, and which he 'had failed to perform, or to show any readiness to perform on his part, and for this default, the court refused to decree a forfeiture. We have always held, that the doctrine of equity, is compensasation, not forfeiture, (Morgan et al. v. Herrick, 21 Ill. R. 497,) and in passing upon the facts and circumstances in each and every case, when the powers of this court are invoked for the enforcement of such strict legal rights, it will never disregard such facts and circumstances as excuse a strict performance at the day, to mitigate the rigor of a forfeiture, or absolve from it altogether. There may be undoubtedly, in many cases, such circumstances as should restrain the vendor from the strict enforcement of a contract;. and as will entitle the purchaser to a specific performance, although he may have failed of a strict compliance at the day. Numerous cases of this kind can be found in the books. In this point of view, part performance will have, accompanied by other circumstances, great weight, as when the vendor is himself in default in some important matter; or when he has accepted part payment after the expiration of the time fixed for full payment. Such we understand to be the general principles recognized in the case of Brashier v. Gratz et al., 6 Wheaton, 528, cited and approved in Bishop v. Newton, and such is the case of Murphy v. Lockwood, 21 Ill. R. 611. But neither of these cases establish the principle that part performance, or a payment of a considerable part of the purchase money, will excuse the purchaser from a strict compliance with his agreement if it be insisted upon. We believe the general and approved rule on the subject of specific performance to be, that the parties may make the time of performance material in relation to each and every successive act to be done, if there be a series of such acts, and when parties do so, courts of equity will not relieve the party in default without a just excuse for, or acquiescence in a breach, or a waiver of the breach. Tyler v. Young et al., 2 Scam. R. 446 ; Smith v. Brown, 5 Gilm. R. 314; Glover v. Fisher, 11 Ill. R. 673; Kemp v. Humphreys, 13 Ill. R. 577; Wynkoop v. Cowing, 21 Ill. R. 570. The case of Smith v. Brown, 5 Gilm. R. 314, was a case of part performance, by payment of a considerable portion of the purchase money, yet the court placed no particular stress upon that, holding it was not a sufficient excuse for subsequent default in complying strictly with the true intention of the parties. The cases of Bishop v. Newton, 20 Ill. R. 178, and Morgan v. Herrick, 21 ib. 495, recognize the same leading principle. The appellee, however, insists that the covenant to pay the third installment on the day, was broken before the sale and assignment by Lunt to Steele, and therefore, upon a breach, it became a personal covenant, and could not run with the land, or be transferred by an assignment of the contract. This is true perhaps, of real covenants, but this is not of that character; it is a contract or covenant for the payment of money, and of a character, such as in equity, are assignable. The covenants on the part of McCullough, were merely money covenants and assignable as such. Whether or not, the conditional power of forfeiture at the option of the vendor, upon failure of punctual ¡jayments, was assignable before or after a breach of the condition, as a general principle of law, we do not discuss or decide, believing it to be unnecessary in this case. The contract discussed, extends to the vendor, Lunt, and “ his representatives or assigns,” either of whom, by the agreement itself, might exercise and declare “ the option ” and “ consider the contract at an end, and prior payments forfeited,” and he and “ his representatives or assigns ” were “ to have all the powers and remedies provided by law or equity,” for the enforcement of the vendor’s rights and remedies. It is not therefore, in our judgment, a question of the legal assignability of the agreement, or of suing upon it, but a plain matter of agreement with the representatives or assigns, which empowered them to act under it. We do not conceive it material how the rights of the “ assigns ” arose in this case, whether by the conveyance of the land to Steele, or the assignment of the money covenant, for both modes of transfer were adopted, and Steele became such “ assigns,” in the true sense of the agreement, and as such he was entitled, by the express language of the agreement, to exercise and declare the “ option ” or to receive the money, if the appellee had not forfeited his right to pay it. But Lunt himself made his option, and rescinded the contract so far as he was authorized to do, as vendor, by the very act of conveying the land to Steele, and Steele did the same, by refusing the money. Therefore it follows, if on such default the vendor or his l£ assigns ” made the election to forfeit, the contract then became absolutely null, as a contract to convey, and thenceforward stood merely as a lease, according to its express provisions. Dominick v. Michael, 4 Sandford, 426 ; Glover v. Fisher, 11 Ill. R. 673 ; Harrington v. Wheeler, 4 Vesey, Jr., 689, note 2, giving the decision in Lloyd v. Collet, 4 Bro. C. C. 469. A forfeiture may be proved by a notice from the vendor to the vendee, that he will require a strict performance at the time fixed, provided the notice be a reasonable one, under all the circumstances. 1 Sug. on Vendors, 360; Adams’ Equity, 225 ; Miller v. Chrisman, 21 Ill. R. 227. There is also a class of cases where time is in equity deemed to be material and a punctual performance required, though not so specified in the contract. They are adverted to by Baron Alderson in Hipwell v. Knight, 1 Tounge and Collin Ex. 415. He illustrates this class by some examples, as, “ If the thing sold be of greater or less value according to the effluxion of time, it is manifest that time is of the essence of the contract, and a stipulation as to time, must then be literally complied with in equity as well as at law.” “ The cases of the sale of stocks, and of a reversion are instances of this. So also if it appears that the object of one party known to the other, was that the property should be conveyed on or before a given period, as the case of a house for a residence or the like.” “ I do not see, therefore, if the parties choose, even arbitrarily, provided both of them intend so to do, to stipulate for a particular thing to be done at a particular time, such a stipulation is not to be carried literally into effect in a court of equity. This is the real contract. The parties had a right to make it. Why then should a court of equity interfere to make a new contract which the parties have not made nor consented to ? It seems to me, therefore, that the conclusion at which Sir Edward Sugden, in his valuable treatise on this subject, has arrived, is founded in law and good sense.” In 1 Sugden on Vendors, 359, will be found a summing up of all the authorities to this effect. Judge Story reaches the same conclusion that Baron Alderson does. 2 Story Equity Juris. § 776, note. Many other American and English authorities might be cited to the same effect. See also Fry on Specific Performance of Contracts, Law Library, 69, page 216, and cases there cited. Lord Roslyn said, in the case in 4 Vesey, Jr., ante, “ the conduct of the parties, inevitable accidents, etc., might induce the court to relieve; but it was a different thing to say the .appointment of a day was to have no effect at all, and that it was not in the power of the parties to contract that if the agreement was not executed at a particular time, the parties should be at liberty to rescind it.” Upon the other question of tenders, there does not seem much room for discussion. The witness Woodbridge, called to prove a tender, who was neither a party in interest, but acting for the attorney of the appellee, without a dollar in his possession applicable to this payment, and, for anything shown, without the power of raising money by selling a bill on the defendant even had he been authorized to draw instead of the appellee’s attorney, simply applied to the appellant Lunt, to know if he would take the money which the witness, or the attorney, would raise during the day. Lunt declined to have anything to do with it, upon the declared ground, that he had rescinded the contract, by selling to Steele. No application was made to Steele who then owned the land and the money covenant, if money was still due and could be paid under it. This inquiry, or offer if it may be so called, lacked several ingredients to make it a good tender, even waiving the point as to its having been within the forfeiture. In the first place, it was not made to the proper person. It was not made at the proper place, for the note was made payable at the Marine Bank in Chicago, and no tender is shown there, and the offer to Lunt on the 10 th of May was not accompanied by the money—it was not in the power of the witness to produce it even if Lunt had then agreed to accept it. A party attempting to make a tender, must be able to show that he has the money in his power or reach to perfect it, if accepted. A refusal to accept, may, under certain circumstances, dispense with the actual count of the money, but never can be received as an excuse for not having the money at command. When offered as an apology for not having the money, the refusal amounts to nothing. This court say, in the case of Buchanan v. Horney, 12 Ill. R. 336, that a tender is stricti juris, and must be clearly proved. The general rule is, that the money must be produced and counted—it must be in sight, and capable of immediate delivery, for great importance is attached to the production of the money, as the sight of it might tempt the creditor to yield and accept it. 2 Greenl. Ev. §§ 601, 2. It must be absolute, and to the creditor himself, his agent, attorney, clerk or ■servant, and at the time the contract requires. Ib. §§ 605, 6, 7. And, to constitute a legal tender, it is essential to prove an actual offer of the sum due, unless the actual production and offer of the money be dispensed with, by the express declaration of the creditor that he will not accept it, or by some equivalent act. Ib. 603 ; 3 Starkie’s Ev. 1067-1070 ; Sloan v. Petrie, 16 Ill. R. 261; Wynkoop v. Cowing, 21 Ill. R. 587. Again, as to the time at which it was made. The appellee claims days of grace, and would have the computation of the sixty days under the contract, begin at the end of the days of grace. Days of grace are given in some States by statute. We have no such statute, nor has our statute on the subject of promissory notes received such a construction. But, as we do not regard what was done, as amounting to a tender, it is unnecessary to pass upon this question. No actual tender is shown for more than fifteen days after the time, allowing the days of grace. The question of days of grace can only arise upon showing a good tender, made within the days of grace, and that has not been done. But there is another solution of the question, and grows out of the intention of the parties as to the time. Resort should not be had to technical rules of interpretation, when the common understanding, or intent, is obvious. The sixty days are purely conventional, and there is nothing in this record showing any intent to inject a strictly mercantile principle into the contract, which shall give the party bound to pay, three days more than was stipulated and agreed upon, within which to pay. The intent seems to us clearly against this gratuity. These contracts may be hard, but of that we cannot concern ourselves. Our office is simply to interpret, not to make contracts for parties. When there is no ambiguity about them, are not against law, not unconscionable, and are made in good faith, we are bound to enforce them. It must be remembered, too, that vendors of real estate may have the most important interests depending upon the punctual fulfillment of contracts by purchasers'. Such appears to have been the case here, of which the appellee was duly and timely notified, and that a want of punctuality would compel Lunt to rescind the contract, and declare a forfeiture, to save himself from similar losses by breach of his own time contracts. Self-preservation is the first and universal law, and, viewed in this light, the rigid rule in this case may not only be just, but perfectly equitable. The decree of the court below is reversed. Decree reversed.