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Mcqueeny v. Daily

SEPTEMBER 16, 1957.

JAMES H. MCQUEENY, PLAINTIFF-APPELLANT,

v.

ROBERT W. DAILY AND RUTH DAILY, DEFENDANTS-APPELLEES.



Appeal from the County Court of DuPage county; the Hon. WILLIAM C. ATTEN, Judge, presiding. Judgment affirmed.

JUSTICE WRIGHT DELIVERED THE OPINION OF THE COURT.

This is an appeal from a judgment entered in favor of the defendants by the County Court of DuPage county, sitting without a jury, in an action for damages for alleged breach of contract for the sale and conveyance of real estate.

The case was originally instituted in a Justice of the Peace Court and hence there were no written pleadings filed.

The material facts as brought out by the evidence at the hearing in the trial court discloses that on August 17, 1954, the plaintiff and defendants entered into an agreement in writing, for the sale by the plaintiff and the purchase by the defendants of a certain parcel of real estate including a dwelling, located in the city of Wheaton, Illinois.

The provision of the contract out of which this litigation arose is found in Paragraph 3 thereof, and is as follows:

"Buyers shall be entitled to full possession of the property on or before ten days after the closing date."

The closing date, as shown from the statement of closing, was October 2, 1954. Defendants took possession of the property on or about September 3, 1954, and rented out some of the rooms and collected rent therefor. Defendants, at the time of taking possession of the property, moved some of the plaintiff's furniture from the house and stored it in the garage and at another place in Downers Grove, Illinois.

Plaintiff contends that the defendants violated the provision of the written contract by taking possession of the property before closing date, and claims damages for the amount of rent collected by defendants prior to the closing date, and damages for the furniture which was removed from the house.

The principal error assigned by the plaintiff is that the court erred in admitting evidence offered on behalf of the defendants to show that the provision of the written contract, with reference to the time of taking possession of the property, was modified or altered by a parol agreement.

Evidence was admitted over the objection of the plaintiff that the plaintiff orally agreed and stated to the defendants that they might go into possession prior to the closing date. Evidence was also admitted over the objection of the plaintiff that the plaintiff contacted some of the utility companies prior to the defendant going into possession, and requested that utility services be changed from his name to that of the defendants.

It may be stated as a general principle of law, as laid down by numerous decisions of our Supreme Court, that when the language of a written contract is plain and unambiguous, proof aliunde cannot be heard to contradict or vary its terms, or give it a meaning inconsistent with the language used in the instrument. Wagner v. McClay, 306 Ill. 560; Schneider v. Sulzer, 212 Ill. 87; Telluride Power Co. v. Crane Co., 208 Ill. 218; Town of Kane v. Farrelly, 192 Ill. 521.

The law is equally well settled that a party to a written contract may waive certain provisions thereof by parol agreement, and such waiver may be shown by parol testimony or may be shown by facts and circumstances sufficiently indicating an intention to waive, and a new consideration is not necessary. Becker v. Becker, 250 Ill. 117; Pierce v. Powers, 180 Ill. App. 687.

In Becker v. Becker, supra, at pages 124 and 125 the court said:

"There can no longer be any contention in this State over the general rule insisted upon by appellee, that a sealed executory contract cannot be altered, changed or modified by parol agreement. This rule of the common law has been adopted by this court and consistently followed in a long line of unbroken authorities," — citing Chapman v. McGrew, 20 Ill. 101; Hume Bros. v. Taylor, 63 id. ...


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