Cumberledge v. Brooks

Mr. Justice Dunn delivered the opinion- of the court: It is claimed by appellees, and the superior court held, that the correspondence between Emmett Brooks and appellant did not so certainly and definitely describe the subject matter of the contract as to enable the court specifically to enforce it, for the reason that it is left uncertain whether five lots or seven were bargained for, and that extrinsic evidence is not admissible upon that question. It is true that a written contract- must speak for itself as to the terms, conditions and limitations of the agreement, but as to the parties and subject matter of a contract extrinsic evidence is always competent, if necessary for their identification. “A deed or other written contract is not void for uncertainty in the description of the land sold or conveyed, if from the words employed the description can be made certain by extrinsic evidence of facts, physical conditions, measurements or monuments referred to in the deed.” Hayes v. O'Brien, 149 Ill. 403. “Any description adopted in a deed by which the premises intended to be conveyed may be established and identified is sufficient; and it is the settled doctrine, for the purpose of sustaining a grant extrinsic evidence may always be used to identify and establish the objects of the call in the deed. A devise or grant will only be declared void for uncertainty where, after resort to oral proof, it still remains a matter of mere conjecture what was intended by the instrument.” Colcord v. Alexander, 67 Ill. 581. Extrinsic evidence was therefore admissible in this case, — indeed necessary, — to identify the subject matter of the contract. It was mentioned in the first letter as “my undivided interest in the Chicago lots.” These words indicate lots in Chicago in which the writer owned an undivided interest. The evidence introduced shows that the five lots mentioned in the amended bill answer this description and no other lots do. This letter appellant answered, “I concluded to accept your proposition,” and inclosed the cash payment demanded. It is difficult to see what more was required to complete the contract. A plain proposition to sell the writer’s interest in the premises mentioned in the amended bill for $1000, — $500 cash and balance in November following, — was unconditionally accepted and the cash payment made. It is true that the vendee in his letter referred to the lots with an added element of particularity. Whether his reference was an interrogation or an assertion, it corresponded with the fact, and the mailing of the letter completed the contract. The third letter did not affect the cohtract already made. Even if the third letter is considered, it does not change the case. A false description has no effect in defeating a contract if the error can be shown and corrected by other matter in the instrument. (2 Parsons on Contracts, 550.) If the repugnancy of the parts is such as to render the intention of the parties unintelligible this defeats the contract, but if there is enough of the consistent and intelligible parts of the instrument to give effect to the intention of the parties the courts will regard such intention. Where there are two descriptions in an instrument, one of which describes the subject matter with reasonable certainty, and the other, giving some additional particular, is incorrect, the incorrect particular or circumstance of description will be rejected as surplusage. (Myers v. Ladd, 26 Ill. 415; Allen v. Bowen, 105 id. 361; Huffman v. Young, 170 id. 290.) The court, by the parol evidence adduced, is enabled to place itself in.the position of the parties. There is no conjecture as to what the parties intended. The subject matter of their negotiation was Emmett Brooks’ undivided one-third interest in the Chicago lots, of which his sisters owned the other two-thirds. Whether the different tracts were divided into five or seven lots was an immaterial circumstance. The evidence shows that the same thing was in the minds of both parties, — the undivided interest in all this property, and nothing else, — and the agreement they made was binding on both, whether there were five lots or seven. The description in a devise, “my house and lot in Pa-toka,” is sufficient. (Allen v. Bowen, supra.) The description of the premises in a conveyance as “the following lots, tracts or parcels of land lying and being in the county of St. Clair and State of Illinois, being lots in” certain blocks, carries all the lots in the blocks. (Bowman v. Wettig, 39 Ill. 416.) This court, by the aid of competent evidence, found in the words, “the north half of the southeast quarter of section 27,” a legal description of the east half of the south-east quarter of section 27. (Felkel v. O’Brien, 231 Ill. 329.) There is no difficulty, by the aid of competent evidence -in this case, in finding the lots in Chicago in which Emmett Brooks owned an undivided interest. While no State, county, town, range, section, monument or measurement is referred to and the size of the lots is not given, it is definitely stated that they are the lots in Chicago which Emmett Brooks owned jointly with his two sisters, and the evidence shows that he never owned any interest in any lots in Chicago except those described in the bill. When the ownership of these lots is proved the identity of the subject matter of the contract is established. It is said that the three letters show a patent ambiguity and that no extrinsic evidence can be received to disclose the real situation. The admissibility of parol proof does not depend in this case upon the distinction between patent and latent ambiguities. Such evidence does not contradict or vary the terms of the writing. It is received merely for the purpose of identifying the subject matter to which those terms apply, and is always admissible for such purpose. Bulkley v. Devine, 127 Ill. 406; Marske v. Willard, 169 id. 276. It is insisted that the vendor was justified in repudiating his contract on account of the gross inadequacy of the consideration. It is true that specific performance is not a matter of absolute right, but this is no case for the application of that doctrine. > Where there are circumstances of oppression, unfairness or advantage taken, a court of equity will not specifically enforce an unconscionable bargain. But the object of courts of equity, as well as courts of law, is the enforcement of contracts understandingly entered into, rather than their evasion. Ordinarily the specific performance of a contract to convey land is as much a matter of course as an action of damages for its breach. There is no charge or evidence of fraud in the case. The parties were competent to contract, and did fairly contract, with each other, and neither side ought to be relieved from the agreement on the ground that good business judgment was not used in entering into the contract. In this case the vendor makes no complaint of the inadequacy of consideration, and can make none. After having sought the vendee unsolicited, made a contract upon his own terms and received half the purchase price, he repudiated the contract, not because of any unfairness or inadequacy of consideration, but at the request of a third party, to whom he at once conveyed the property for the same consideration for which he had sold it to the first vendee. He testifies that he has no interest in the property. No circumstances are shown which make it inequitable that this contract, fairly made, should not be enforced, particularly when the relief would be denied to complainant, not for the benefit of the vendor, but in order to give the benefit of the alleged unconscionable bargain to a third person to whom the vendor has conveyed the property for the same inadequate consideration. A decree dismissing the bill would simply take from the complainant the benefit of his contract and give it to another who officiously interfered and induced the vendor to repudiate his agreement. . It is urged that there is a variance between the allegations of the bill and the proof, in that appellant’s letter of March 2 differs from the .exhibit attached.to the bill. No objection was made to this letter when it was offered in evidence, and the objection of a variance cannot now be entertained. Had such objection been urged it could readily have been obviated by an amendment of the bill. The decree was' on the merits, and it cannot be sustained in this court on the ground of a variance in the proofs which was not suggested in the court below. Driver v. Ford, 90 Ill. 595 ; Grundeis v. Hartwell, id. 324. The vendor having repudiated the contract and put it out of his power to comply with its terms by his conveyance to a third party, no tender by complainant was necessary before filing his bill. Lyman v. Gedney, 114 Ill. 388; Boston v. Nichols, 47 id. 353. The decree will be reversed and the cause remanded to the superior court of Cook county, with directions to enter a decree in conformity with the prayer of the bill. Reversed and remanded, with directions. Scott and Carter, JJ., dissenting.