Bourke v. Kissack

Mr. Chief Justice Farmer delivered the opinion of the court: The original report of the master in chancery recommending a decree in favor of appellees set out the substance of the material testimony heard by him but was somewhat indefinite as to whether appellant, prior to the expiration of the sixty days limited by the written instrument, waived the right to forfeit it if riot performed by appellees within that time and expressly or impliedly agreed to an extension, as alleged in the bill. The original report recited the substance 'of the testimony offered by appellees upon this subject but did not definitely state what it proved. The cause was re-referred to said master, with directions that he report his findings from the evidence upon this question more specifically. In a supplemental report the master again recited, and more fully, the evidence of the respective parties- on this subject, and found therefrom that the conversation between the parties which appellees relied upon as an extension of the written agreement and a waiver by appellant of his right to forfeit it occurred prior to the expiration of the sixty days fixed by the written instrument, and that what was said between the parties amounted to an extension of the written instrument and estopped appellant from denying such extension when the parties met, December 28, 1905. The meeting of the parties December 28, 1905, was at the office of appellant’s attorneys, in the city of Elgin. The master reports that the evidence was conflicting as to what occurred there, and, Lafter setting out the substance of it, finds that an agreement was made between the parties at that time for an extension of the written instrument thirty days, and that the consideration for said extension was the mutual promises of the respective parties and was a good consideration. The abstract of title to the premises was never delivered by appellant to appellees until the 28th of December, 1905, the date at which the alleged extension was agreed upon. The master finds, from the evidence, that within thirty days from December 28, 1905, appellees notified appellant that they had the abstract examined and would accept a deed from him, and offered to pay him the $9900 or deposit it to his credit in the Eirst National Bank of Elgin, but that he refused to accept the money and make the conveyance, and stated that he had been offered more money ($16,000) for the land and would not perform the agreement, which he claimed had expired by its terms. The master further finds that appellees were able to perform their offer to pay the money upon the conveyance being executed, and that they were entitled to a decree requiring the conveyance to be made. The validity of an extension, not in writing, of the written agreement, if made before the expiration of the time limited in the written instrument, was settled in our former opinion in this case. The only difference between the bill then before us and the case made by the proof under the amended bill is, that when the bill was first before us it alleged that the meeting between the parties at which the thirty days’ extension was agreed to, occurred December 26, 1905, while the bill as finally amended alleges, and the proof thereunder shows, that this meeting occurred December 28, 1905, and was after the expiration of the sixty days limited by the written instrument. The amended bill alleged, and the proof showed, however, that prior to the expiration of the sixty days fixed by the written instrument appellees talked to appellant over the telephone • and reminded him that, the time for the performance of the agreement was about to expire; that he had not furnished the abstract as agreed; that they desired to have it examined before completing the transaction and asked that it be furnished them. Appellant replied that he had not been able to lay his hands upon it up to that time but that he would give appellees time to have the abstract examined. No definite time was mentioned by the parties in this conversation, but on December 28, 1905, the parties met and agreed upon a definite period of thirty days. Appellant contradicted the testimony of appellees that he agreed to give them time to have the abstract examined or that he agreed to the extension of thirty days, but we think the testimony warranted the master in finding that he did agree to give appellees time to have the abstract examined and to the definite period of thirty days at the meeting of December 28, and that he was estopped from forfeiting the written agreement on the ground that appellees had not complied with it within the time fixed by it. The weight of the proof shows that appellant was responsible for appellees’ failure to perform the acts required of them within the sixty days fixed by the written instrument, by the failure on his part to furnish them an abstract of title, as he agreed to do. In our opinion the case made by the proof as to the extension agreement is not essentially different from that made by the allegations of the bill when the case was before us the first time, and it is governed by the same principles announced and authorities cited in the opinion then rendered. Much importance is placed by appellant upon a written instrument prepared by one of the attorneys of appellant in pursuance of his directions, and a conversation with reference thereto had between him and one of appellees in the office of appellant’s attorneys at the time the thirty days’ extension was agreed to. It appears from the proof that after the extension had been agreed to and after the failure to procure the original agreement for the purpose of endorsing it thereon, a further conversation was had between appellant and one of appellees with reference to a purchase of the land by appellees, the consideration to be paid in installments extending over a period of some years and to be secured by mortgage on the seventy-nine acres and an additional twenty and one-half acres which appellees were in possession of and which was occupied by the plant of the American Torpedo Sand Company, in which they were interested. Appellant directed one of his attorneys to prepare an agreement for the sale by him to appellees of the premises, in accordance with the terms talked of between him and one of appellees at the time, and send it to appellant at Chicago. This the attorney did, but the agreement was never signed. The master found that this talked-of agreement, never having been consummated, did not abrogate the written agreement of October 25, 1905, and the extension thereof. The proof, in our opinion, warrants the conclusion that the extension of the written agreement of October 25, 1905, would remain in force until the other agreement was executed by the parties. McDavid v. Sutton, 205 Ill. 544. We think the conclusions of the master, and the decree confirming his report and granting the relief prayed, were justified by the law and evidence, and the decree is affirmed. Decree affirmed.