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Mcgrath v. Davis

SEPTEMBER 16, 1966.

VINCENT G. MCGRATH, PLAINTIFF-APPELLEE,

v.

ALTON A. DAVIS AND MAUDE L. DAVIS, HIS WIFE, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County, Chancery Division; the Hon. CORNELIUS J. HARRINGTON, Judge, presiding. Judgment for plaintiff affirmed. MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

This appeal is taken from an order entered in the Circuit Court of Cook County ordering specific performance of a real estate contract for the sale of certain described real estate between Vincent G. McGrath, plaintiff, and Alton A. Davis and Maude L. Davis, his wife, defendants.

The plaintiff, buyer, and defendants, sellers, entered into a contract on January 9, 1963, in which the plaintiff agreed to purchase at the price of $23,500, and the defendants agreed to sell a certain parcel of real estate commonly known as 4455 Drexel Boulevard, Chicago, Illinois. On or about January 4, 1963, the defendants acquired title to the said real estate. They had purchased the property from the original owner through Charles Ringer Company, real estate brokers. At some time thereafter the broker informed defendants that he knew of a person who wished to buy the property for the price of $23,500. Prior to January 9, 1963, Charles Ringer Company contacted the plaintiff and prepared a contract between the plaintiff and the defendants. On January 9 the plaintiff executed the contract and left it, together with a deposit of $1,000, with Charles Ringer Company. Defendants executed the contract on the same day and a duplicate copy of the contract, signed by defendants, was delivered to the plaintiff within five days. The contract provided, among other things, that:

"VINCENT G. McGRATH, or Nominee, agrees to buy at the price of Twenty Three Thousand Five Hundred and No/100 ($23,500.00), which includes the mortgage indebtedness, if any, hereinafter specified, the following described real estate, in Cook County, Illinois (legal description of property), and ALTON A. DAVIS and MAUDE L. DAVIS, his wife, agree to sell said premises at said price, and to convey or cause to be conveyed to buyer good title thereto by stamped statutory warranty deed, with release of dower and homestead rights, . . .

"Rents, water taxes, insurance premiums are to be adjusted pro rata as of date of delivery of deed. Existing leases and insurance policies shall be assigned to buyer. General taxes for the year 1962 are to be prorated from January 1, to date of delivery of deed. If the amount of such taxes is not then ascertainable, prorating shall be on the basis of the amount of the most recent ascertainable taxes.

"Buyer has paid ONE THOUSAND AND NO/100 ($1,000.00) Dollars earnest money to be applied on purchase price, and agrees to pay within five days after title is shown good or is accepted buyer, the further sum of TWENTY TWO THOUSAND FIVE HUNDRED AND NO/100 ($22,500.00) Dollars, provided deed as aforesaid shall be ready for delivery. . . .

"Within twenty days from date hereof, seller shall deliver to buyer or his agent (which delivery may be made at office of Charles Ringer Company) as evidence of title covering date hereof, showing record title in seller (or grantor) . . . (2) Owner's Guarantee Policy of Chicago Title and Trust Company in the amount of the purchase price or its customary preliminary report on title subject to the usual objections contained in such policies, though, if such report be furnished, seller shall deliver such guarantee policy when deed is delivered, but seller, on furnishing such report shall not be in default for failure to furnish policy until ten days after demand therefor by buyer, such policy or report on title to be conclusive evidence of good title subject only to the exceptions therein stated; . . .

"All notices and demands herein required shall be in writing. The mailing of a notice by registered mail to seller at C/o Charles Ringer Company, 7915 Exchange Avenue, Chicago, Ill., or to buyer at 7925 Racine Avenue, Chicago, Illinois shall be sufficient service thereof, on date of mailing."

The contract also provided that the seller would pay a real estate brokerage commission to Ringer.

On February 8, 1963, the plaintiff filed a complaint in the Circuit Court, in which complaint he alleged that on January 9, 1963, plaintiff and defendants had entered into a written contract, copy of which was attached to the complaint; that plaintiff had duly performed all covenants and conditions on his part to be performed; that plaintiff had tendered to defendants the entire balance of the purchase price as set forth in the contract by depositing same with Charles Ringer Company, agent of defendants; that plaintiff had been at all times and still was ready, willing and able to complete the contract; that defendants had failed to perform the conditions prescribed in the contract inasmuch as they have failed and refused to exhibit evidence of title and to deliver a deed; and the plaintiff prayed that the court enter a decree of specific performance against the defendants.

The defendants filed an answer admitting that a contract was entered into between them on January 9, 1963, but denying that plaintiff had performed all the covenants and conditions on his part to be performed, denying that plaintiff had tendered to defendants the balance of the purchase price in accordance with the terms of the contract, denying that the defendants have failed and refused to exhibit evidence of title, and further denying that the plaintiff made a timely request for the delivery of a deed. The defendants also filed an affirmative defense in which they allege that the plaintiff had "waived a current report of title and agreed to accept as satisfactory proof of title a certain Chicago Title and Trust Company report . . ."; that the plaintiff failed and refused to pay or tender the balance due on the purchase price within the specified time; and that defendants were ready and willing to deliver their deed.

On February 6, 1963, the plaintiff moved the court for a summary judgment requiring the defendants to specifically perform the contract in question, and with the motion the plaintiff presented certain affidavits. In his affidavit he stated that the contract was executed on January 9, 1963; that $1,000 for earnest money was deposited with the contract with Charles Ringer Company; that Charles Ringer Company, within five days from the date of the contract, delivered to plaintiff a duplicate of the contract executed by the defendants. He further stated that the contract provides that within 20 days from the date thereof seller shall deliver to buyer, or his agent, evidence of title; and that no evidence of title has been delivered to the plaintiff within 20 days of the date of the contract, nor at any time since; that on January 28, 1963, the plaintiff requested from John J. Rewers (a salesman for Charles Ringer Company) evidence of title to the said real estate, and was advised by Rewers that this was not in the possession of Charles Ringer Company. Plaintiff further stated that the contract provides that within five days after title is shown to be good a further sum of $22,500 to complete the purchase price should be deposited with Charles Ringer Company, provided that a deed to the property shall be ready for delivery; that on February 1, 1963, the plaintiff delivered his certified check to the Ringer Company in the amount of $20,502.86, being the balance of the purchase price, less real estate tax and other deductions which were agreed to be prorated; and that on February 6, 1963, the plaintiff served a demand on defendants, in care of Charles Ringer Company, for delivery of a deed in compliance with said contract.

Affidavits, counteraffidavits, and a deposition were submitted to and considered by the court in the hearing for summary judgment. In Davis' deposition he stated, among other things, that while it was agreed at the time the contract was signed that there would be a "complete passing of all the necessary papers and the cash," he does not remember ever having executed a deed pursuant to the contract, and that he did not execute such a deed and deliver it to the buyer or Charles Ringer Company.

On April 9, 1964, the defendants filed a petition praying that the court deny a summary decree to the plaintiff. In that petition defendants contend that there were issues of fact in the cause; that Charles Ringer Company was representing the defendants and also representing plaintiff; that Charles Ringer Company as the agent of plaintiff, by parol waived the provision of the contract which required the defendants to submit evidence of title within 20 days from January 9, 1963; that thereupon the defendants were entitled to "an immediate consummation of the transaction"; and that the defendants were never informed that the plaintiff had deposited any earnest money with Charles Ringer Company.

On April 20, 1964, the plaintiff filed a verified reply to the defendants' petition in which he stated that defendants had admitted the execution of the contract; that the question of the agency of Charles Ringer Company and Rewers, or either of them, is immaterial and irrelevant; that the defendants in their counteraffidavit state that they were at all times represented in the transaction by Charles Ringer Company through Rewers. The plaintiff further set out that there is no fact issue pointed out by defendants' petition inasmuch as, even admitting there was a waiver of submission of title evidence, no allegation was made of the waiver of any ...


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