Appeal from the District Court of the United States for the Southern Division of the Southern District of Illinois.
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
Plaintiff-appellee recovered judgment for $30,000 against defendant-appellant for the wrongful forfeiture of a written contract dated May 3, 1924, wherein the defendant sold to plaintiff acres in Madison county, Ill., for subdivision purposes.
Plaintiff's contract obligations were to pay: (1) $5,000 cash; (2) $1,000 on or before the 5th of each month for 70 months; (3) taxes subsequent to 1923; (4) interest semiannually; (5) tenants' damages; (6) for the platting of the subdivision; (7) insurance on houses, then on or thereafter erected on the premises; and also (8) to keep the premises free from mechanics' liens. Defendant's undertaking was that, if and when plaintiff had performed his covenants and agreements, defendant would: (a) Make a plat; (b) convey the property.
Although defendant pleaded over, after demurrer overruled, he urges, on authority of Marske v. Willard, 169 Ill. 276, 48 N.E. 290, that the demurrer should be considered here because the declaration stated a defective cause of action.
The cause of action attempted to be set out in the declaration, stated most favorably to plaintiff, is that plaintiff was required to, and did, spend large sums of money to render the property suitable for sale, and that because thereof plaintiff requested defendant to, and defendant did, waive the monthly and other payments until the sale of lots would permit plaintiff, without financial distress to himself, to pay said monthly installments, interest, taxes, etc.; that, while plaintiff was performing under that new agreement, defendant, in violation thereof, wrongfully gave notice of forfeiture and took possession of the premises. We think that is a defective averment of a good cause of action, and that demurrer was waived by pleading over.
There was no attempt and no evidence to prove the issue thus raised.Apparently by common consent, the case was tried on three issues not raised by the pleadings, namely: (1) Was defendant in default on his undertaking to make the plat; (2) was he in default on his contract to make deeds for the lots; (3) that defendant, by habitually accepting payments on dates other than those stipulated in the contract, waived the time essence clause and could not declare a forfeiture of the contract without first giving plaintiff reasonable, definite and specific notice that from and after a given date strict compliance with the contract provisions would be exacted.
"That on, to-wit, the 22nd day of April, 1925, pursuant to the terms of said agreement, the defendant caused a plat of said tract or parcel of land to be duly made * * * which said plat was on the day and date aforesaid duly filed of record. * * *"
In view of that averment, it is not clear why any question as to the plat should or could properly have been raised. But as no one called the attention of the court to the fact that they were trying a false issue, we would not give it further consideration, except for the fact that the court's instructions thereon to the jury require consideration.
One of plaintiff's contentions was that defendant was in default because he had not earlier filed the plat for record. The court told the jury that there was no specific provision that required defendant to file the plat, but that there was the provision that:
"'For each $300 of monthly payments made, it is agreed that the said party of the first part shall furnish a deed for any selected lot facing on the hard road or facing on Pontoon Avenue,' and * * * defendant Rode would have violated the laws of the State of Illinois if he had attempted to make a deed or conveyance to a lot * * * without having made a plat and filed it for record."
The court then read to the jury two sections from the Illinois statutes, one of which showed that to sell or offer for sale any lot, etc., without complying with the statute with reference to the filing of plats for record would be an offense against the statute; the other section read provided for ...