Appeal from the Circuit Court, Third Circuit, of Madison
County; the Hon. FRED P. SCHUMAN, Judge, presiding. Judgment for
Rehearing denied November 18, 1966.
Defendants Virgil Selhime and Mildred Selhime, the contract sellers, appeal from an adverse judgment of the trial court in a suit for specific performance of a contract to convey real estate. John W. Lock and Dorothy M. Lock who purchased the real estate involved in the suit after the contract between plaintiff-appellee Herbert G. Wickenhauser and the Selhimes was entered into, were joined as defendants in the trial court.
The trial court, after hearing the evidence and reviewing the briefs filed by all of the parties, wrote an extensive opinion and order finding for the plaintiff and ordering all of the defendants to convey the real estate to the plaintiff. Defendants Lock do not appeal from the judgment of the trial court.
Defendants-appellants contend (1) that since the contract of sale under which plaintiff sued contained a provision that time was to be considered as of its essence and since plaintiff did not sue within that time, plaintiff's suit for specific performance of the contract must fail because there was no waiver of the time provision under the evidence in this case, and (2) that since plaintiff once refused a title tendered by the vendor under the contract, he cannot now sue for specific performance so as to compel the vendors to convey to him the title he once declined.
The principal question before this tribunal is whether or not there was an evidentiary basis for the judgment of the trial court.
On April 3, 1964, the plaintiff, Herbert G. Wickenhauser, entered into a contract with the defendants Virgil Selhime and Mildred Selhime to purchase the following described property:
"2703 Godfrey Road, Township of Godfrey, better known as Selhime's Restaurant, brick building and land, approximately 138' fronting Godfrey Road, approximately 200' deep. . . ."
The contract, partly printed and partly typewritten, recited that $6,700 had been received as "part payment" and that if the remaining $60,300 were paid within thirty days a conveyance would be made.
The contract contained a printed provision that "should the title to the property not prove good, then (the) $6,700 (would) be refunded, (b)ut should the said Herbert G. Wickenhauser fail to perform this contract on his part promptly at the time and in the manner above specified (time being of the essence of this contract), then the above $6,700 shall be forfeited by him as liquidated damages, and the above contract shall be and become null and void."
The Selhimes had listed this property for sale with Frank Wickenhauser, a real estate broker in Alton, Illinois, and Herbert G. Wickenhauser purchased the property through this agency. Herbert Wickenhauser, the purchaser, obtained an abstract of title to the property purchased and hired Bruce Quackenbush, an Alton lawyer, to examine it for him. Quackenbush found that there was a five-foot "spite strip" or tract of land five feet wide, running between a street known as Tibbett Street, to the east or rear of the Selhimes' land and the Selhimes' land itself.
At the inception of the transaction Selhime had told Frank Wickenhauser that Harry Marshall, an Alton lawyer, was his attorney; and when Herbert received Quackenbush's opinion he got in touch with Frank who, in turn, communicated with Marshall. Herbert, Frank and Marshall then had a conference the day following the date of Quackenbush's opinion, April 21, 1964. At this meeting, according to Marshall's testimony, Herbert said the five-foot strip was of significance to him, because he wanted ingress to and egress from the land he was buying in respect of Tibbett Street. But Marshall stated that in his view the contract with the Selhimes obliged them to convey only what they owned; and that the five-foot strip was not within the description.
Another meeting was held May 14, 1964. This was attended by Virgil Selhime, Harry Marshall, his attorney, and Frank and Herbert Wickenhauser. There was a difference in the testimony of the persons attending as to what transpired. Selhime and Marshall, his attorney, testified that Marshall drew out a deed, previously signed and acknowledged by Selhime and his wife, and tendered it to Herbert, but that Herbert refused it. Herbert and Frank denied that a deed was tendered. All parties agreed, however, that Marshall had said that Selhime was willing to convey what he owned, i.e., the land without the five-foot strip or rights across it, but that Herbert refused at that time, insisting that title to the five-foot strip be given him, or that some arrangement be made for a right-of-way over it, as a condition to his accepting conveyance from the Selhimes and paying them their money.
Herbert testified that the next thing he said was, "It's up to you folks," and that he then turned on his heel and walked out of the meeting. Selhime said that he slammed the door and walked out after calling him, Selhime, a liar.
Five days later Herbert talked to Marshall on the telephone. Marshall then asked him again if he would accept the deed, adding that the Selhimes considered that the agreement had been breached by his failure to ...