Monson v. Kill

Mr. Justice Shope delivered the opinion of the Court: The first point made is, that the bill is defective in not alleging that the complainant was in possession of the land; or that he claimed to be the owner and the land was unimproved and unoccupied. Sec. 50, chap. 22, R. S.; Gage v. Abbott, 99 Ill. 366; Oakley v. Hurlbut, 100 id. 204. The testimony shows that the complainant was in possession of the land at the time of filing the bill, and that fact should have been alleged. But the defendant having failed to demur specially for that cause, and having answered and proceeded to hearing without objection, waived it. Gage v. Schmidt, 104 Ill. 106. 2. The recorded contract would interfere with the sale of the land by appellee, and should be treated in equity as a cloud upon his title. Larmon v. Jordan, 56 Ill. 204; Sea v. Morehouse, 79 id. 216. By reference to the contract given to Monson, by appellee, it will be seen that Monson was given authority to sell within six months, for a fixed net price, one-half to be paid in cash and the “ balance in one, two and three years,” with six per cent interest payable annually, secured by notes and mortgage on the property. If it be conceded, which it is unnecessary to determine, that Monson had authority to execute the contract with Beveridge, and to extend the time ten (10) days for the examination of the abstract by the purchaser, there was still a clear departure from the power and authority given. The authority to sell for one-half (J) cash in hand, is in no sense complied with by a sale on ninety days’ time. The authority here was special and limited, and the purchaser was required to know that the authority must be strictly pursued. Jackson v. Badger, supra; Mechem on Agency, secs. 285, 325 and cases cited. Beveridge took from Monson a contract in writing and, in the absence of proof to the contrary, will be presumed to have known of Monson’s authority to sell. There is nothing in the case tending to show that Beveridge was led to deal with Monson as a general agent. It is clear that appellee was not bound to take $6000, at three months’ time, instead of cash in hand. As said by the Appellate Court, in effect the sale was for a less price than authorized, by reason of the loss of the use of the money for that period. Holbrook v. McCarthy, 61 Cal. 216; Bust v. Cole, 28 N. Y. 261; Sea v. Morehouse, 79 Ill. 216; Coleman v. Garrigues, 18 Barb. 60. Again the authority to sell the land and to make the balance, over and above the cash payment, payable in one, two and three years, did not authorize the making of a contract, that such payments might be made on or before said times, at the option of the purchaser. This precise question arose in Siebold v. Davis et al., 67 Iowa, 560. The court say in respect of it: “In this regard the contract of sale exceeded the limits of the plaintiff’s authority, and is, therefore, not binding upon the principal.” So in Jackson v. Badger, 35 Minn. 52, where the same question is presented, the court say, “ making the three thousand dollars payable on or before three years ” was not in accordance with the prescribed condition that it should be payable “ in three years.” Appellee had the right to prescribe the terms upon which his land should be sold, and having done so, in express terms, the stipulation must be substantially followed. Other objections are insisted upon, but we do not deem it necessary to discuss them. It is, however, insisted that a custom prevails among real estate brokers in Chicago that would authorize the making of this contract. It is unnecessary to determine whether a usage or custom, extending the time of payment of a cash sale ninety days, and authorizing payments to be made where land is sold upon credit, on or before the time stipulated, could be upheld as reasonable or not, for the reason that the testimony offered upon that subject wholly fails to establish any such general usage or custom. It is also objected that the court erred in entering its decree nunc fro tunc, thereby restricting the time in which to perfect an appeal. We are unable to see that there was error in so entering the decree, but if there was, appellants have not been prejudiced thereby. The judgment of the Appellate Court will be affirmed. Judgment affirmed.