APPEAL from the Superior Court of Cook County; the Hon.
RUDOLPH DESORT, Judge, presiding.
MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:
This is an appeal from a decree for specific performance entered by the superior court of Cook County.
Robert D. Whitelaw, the appellee, filed complaint for specific performance based upon a written instrument which reads as follows:
"Option of purchasing the property of F.S. Ramm located at 1006 No. Leamington Ave.
Purchase price of $10,500
Down payment of 2,500 or $3,000
Balance to be paid in monthly installments of $75.00
In case of Mr. Ramm's death the balance to be paid to Mr. Ramm's estate at no interest
In consideration for the above Mr. Ramm will live rent free for the rest of his life at the above address
If desired payments of $75.00 per month will begin ____ these payments to apply on the purchase price of the property. Also that said property can not be re-sold without the consent of Mr. Ramm
The appellants are the executor of the estate of Fred S. Ramm, deceased, and the beneficiaries and their spouses under his last will and testament. These appellants filed answer in which they denied that Ramm had entered into an agreement in writing with appellee to sell his property located in the city of Chicago and further denied that the appellee had tendered performance on his part under such agreement. A counterclaim was also filed by them asking for judgment against appellee for rent at the rate of $40 per month from the date of Ramm's death and also for damages on account of alleged interference of appellee in their attempts to rent the lower apartment of said premises. Answer having been made to the counterclaim, issue was joined on the pleadings.
The appellee, Whitelaw, had previously secured an order in the probate court of Cook County, directing that Brady, as executor of Ramm's estate, file a petition in that court for leave to convey the property involved to Whitelaw. From that order Brady appealed to the superior court, and the appeal and the suit for specific performance were consolidated. The matter was thereafter referred to a master in chancery to take testimony and report his findings and conclusions. The master recommended that a decree for specific performance be entered and that the counterclaim of the appellants be dismissed. Objections of the appellants to the report were overruled and thereafter renewed as exceptions thereto. On December 4, 1953, a decree was entered overruling appellants' exceptions and directing appellants to convey the real estate in question to appellee upon payment to them of $10,151.48, which amount represented the purchase price of $10,500 less the sum of $300 owed by Fred S. Hamm, deceased, to the appellee, "which was represented by note of said decedent held by appellee used to bind the contract," and less $48.52, being appellee's costs taxed against the appellants. The decree further ordered that, in the event of appellants' failure to so convey within thirty days, the master in chancery was appointed to deliver a master's deed to appellee upon payment to the clerk of the amount fixed by the court. The counterclaim was dismissed for want of equity. From this order appellants have appealed to this court.
The errors relied upon are that the court erred in sustaining the master's report, which found that a valid contract had been entered into, that the instrument sued on was in compliance with the Statute of Frauds, and that the equities were with the appellee, and in entering a decree for specific performance and dismissing the counterclaim of appellants. The primary issue involved is the nature of the instrument sued upon. Appellants contend that it was an option which the appellee, Whitelaw, had accepted and agreed to perform but that he had failed to exercise his election thereunder in strict compliance with its terms. Appellee contends that the instrument, though ...