Eaton v. Schneider

Mr. Justice Wilkin delivered the opinion of the court: By the express terms of the bond here sought to be specifically enforced by appellant time was made of the essence of the contract, and it is contended on behalf of the appellees that the appellant, Eaton, is not entitled to a specific performance by Schneider, for the reason that he, himself, failed to comply with the contract on his part within the specified time, by paying his notes when they came due. Appellant contends that the time for payment was extended and thereby the condition waived.. On this point the court below found adversely to appellant, and we think the testimony failed to establish any definite extension of time. It does, however, clearly show that appellee Schneider granted such indulgence to Eaton in permitting the time for payment to go by without declaring an immediate forfeiture, as might reasonably lead Eaton to believe' that he did not intend to insist upon an immediate performance of the contract according to its terms, or that appellant’s failure to do so should work a forfeiture.of his right to a specific performance as against appellee Schneider. The evidence of Schneider himself is, that he granted appellant two clays after maturity to fix the matter up, and, in fact, three weeks elapsed between the date of the maturity of Eaton’s notes and Schneider’s first act indicating an intention to declare a forfeiture. This indulgence, during which negotiations were pending for a new agreement, worked a suspension of Schneider’s right to declare a forfeiture without notice. While his conduct was not necessarily an absolute, permanent waiver of that right, yet in a court of equity there was such a temporary suspension of the right as could be resumed only by giving definite and specific notice of an intention to that effect. (Watson v. White, 152 Ill. 364; Monson v. Bragdon, 159 id. 61.) Forfeiture is a harsh remedy, and in equity must yield to the principle of compensation, where fpir dealing and good conscience seem to so demand. _ (King v. Radeke, 175 Ill. 72.) Where time is stated to be of the essence of a contract to convey land, if the parties treat the time clause as waived or suspended, one of them cannot suddenly insist upon a forfeiture, but must, in order to then avail himself of it, give reasonable, definite and specific notice of his changed intention. Monson v. Bragdon, supra. In this case the burden of proof was upon Schneider to show that, after granting temporary indulgence to Eaton, he gave him the requisite notice of his intention to declare a forfeiture. There was introduced on the hearing a paper which seems to have been intended as a notice by Schneider .of his intention to declare a forfeiture of the contract, but the abstract of the evidence wholly fails to show any service of that notice upon appellant. Appellees also introduced, and claim as notice to the appellant, the record of the bond, upon which is endorsed: “Default having been made in this bond, we declare this bond null and void. Default in payment of two notes past due. Charles G-. Schneider. [Seal.]” This endorsement upon the record is a mere memorandum, not required by law, and hence in no sense legal notice to appellant of a forfeiture of his rights under the bond. A forfeiture can be declared, after waiver, only in the manner hereinbefore stated. As to the rights of appellee Ida Berryman, we think the court below erred in finding she had no notice of appellant’s rights. The bond for a deed to him was upon record and notice to the world of his rights thereunder. A subsequent purchaser could claim no greater rights on the ground that there had been a forfeiture than could Schneider himself. Neither could claim the benefit of a forfeiture of the bond without proof that such forfeiture had been legally declared. We think the court below erred in dismissing the bill. It appears from the evidence that appellees have received rents of the premises, for which appellant claims an accounting. For the reasons indicated, the decree of the circuit court will be reversed and the cause remanded, with directions to that court to re-instate the same for further ' proceedings in conformity to the views herein expressed. Reversed and remanded.