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Bell v. Pondell

APRIL 1, 1965.

MOZELLA BELL, PLAINTIFF-APPELLANT,

v.

SHELDON E. PONDELL AND BETTY JANE PONDELL, DEFENDANTS-APPELLEES.



Appeal from the Superior Court of Cook County; the Hon. JOHN J. LUPE, Judge, presiding. Decree affirmed.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

This involves an appeal from a decree of the Superior Court of Cook County dismissing the complaint for want of equity after a hearing had before a master in chancery. The appeal was taken directly to the Supreme Court of Illinois and transferred here by that court.

The complaint asked for specific performance of a contract for the purchase of certain real estate located in Chicago, Illinois. The contract was on a printed form known as "Articles of Agreement for Warranty Deed," to which was attached a rider.

The questions presented to this court are (1) whether the contract was ambiguous to an extent which would justify the court in hearing parol evidence to determine its meaning, and (2) if the contract was ambiguous did the trial court correctly resolve such ambiguities in favor of the defendants.

On December 16, 1957, plaintiff, together with James Bell, who was at that time her husband, executed "Articles of Agreement for Warranty Deed," wherein plaintiff and her husband agreed to purchase from the defendants real estate described therein. In the contract, the purchasers agreed to pay the purchase price of $20,000 in the following language:

"in the manner following, to-wit:

SEE ATTACHED RIDER

with interest at the rate of ____ (____%) per centum per annum payable ____ annually on the whole sum remaining from time to time unpaid."

The pertinent portion of the rider is as follows:

"RIDER

One-Thousand ($1,000.00) Dollars upon the signing of this agreement; One-Thousand ($1,000.00) Dollars on February 15, 1958; One-Thousand ($1,000.00) Dollars on April 1, 1958, provided the sellers deliver possession to the buyers on that date and if they do not so do, than (sic) the Two-Thousand ($2,000.00) Dollars is to be returned to the buyers. The sum of Seventeen Thousand, ($17,000.00) Dollars, is to be paid in twenty (20) years in equal monthly installments of $127.85 and the first payment is to be made on May 1, 1958, and the first of each month thereafter, monthly payments shall be made until the whole amount is paid in full. The purchasers may prepay any amount over One-hundred ($100.00) Dollars, at any time they desire. In addition, the purchasers are to pay to the sellers each month, one-twelvth (sic) 1/12, of the previous years taxes, and the sellers hereby warrant that they will use this money to pay the taxes on the said property. After the tax bills are issued, if the amount on deposit is not sufficient to pay the taxes, the purchasers shall within thirty (30) days pay whatever is due. If the amount paid in, is more than necessary than (sic) the sellers shall immediately give the purchasers credit for the amount overpaid in addition buyers are to pay $2.00 a month to purchasers (sic) for insurance.

IT IS FURTHER AGREED that when the balance due is Ten Thousand ($10,000.00) Dollars, then if the purchasers wish then upon giving the sellers thirty (30) days notice the sellers will give them a deed and take back on (sic) purchase money mortgage for the amount still due and owing and on the same terms and conditions as in the preceding paragraph."

The evidence showed that pursuant to the rider three $1,000 payments had been made, and 55 payments of $127.85 each had also been paid by the plaintiff, making a total of $10,031.75.

The plaintiff and her husband were divorced during the period that payments were being made, and pursuant to the terms of the divorce decree the plaintiff succeeded to all right, title and interest of ...


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