Mr. Justice Ricks
delivered the opinion of the court:
The primary and controlling question, as we view it, is as to the legal effect of the contracts offered in evidence and made between the parties hereto. While the contracts were both upon the same piece of paper, it is apparent from the contracts themselves, as well as the evidence in the record, that they were entirely distinct. Huling & Co. were real estate brokers. The State street property that they proposed to sell to Bolton belonged to one Flanuigan, and the Indiana avenue property that they were proposing to purchase was for some customer of theirs whose name they did not disclose. The offers as made by appellees were each of them independent and each was signed separately by appellees. When these propositions were presented to appellant he made a single acceptance to both propositions by writing across the back of the paper upon which they were written, “I accept the within if title proves satisfactory.—James Bolton.” Appellant contends that this written acceptance completed all the contract made between the parties; that it is plain, unambiguous, and requires no construction other than such as the ordinary import of the words used would give it. Appellees claim that it must have a construction different to what the ordinary idea to be derived from its context would give, and ask that, inasmuch as the proposition to buy the Indiana avenue property had attached to it the condition that the title should be merchantable and a merchantable abstract should be furnished and brought down to date, and the proposition for the property that they were to sell to appellant on State street did not have that condition attached, this acceptance must be regarded as applying only to the State street property. In other words, the appellees contend that the court should divide this acceptance written by appellant on the back of these contracts, in such a manner as to make a part of it apply to one of them and the whole of it apply to the other. They do not set forth just how the division shall be made, but from the argument we are led to infer that their position is1 that the acceptance should be read, as to the Indiana avenue property proposed to be purchased of Bolton, as, “I accept.— James Bolton,” and as to the State street property proposed to be sold to Bolton the entire acceptance or all the words shall be given effect.
If this acceptance can, in the light of the law, be applied to each of these contracts without doing violence to some well known principle of law and without working an unreasonable result as applied to the two propositions, then the court is not warranted in rejecting any part of it. Mutuality is one of the elements ordinarily looked for in a contract. The proposition as to the Indiana avenue property, as made by appellees, was, so far as it affected them, upon the condition that the title should be merchantable. If it was not merchantable they were not bound to take it. If their theory of the acceptance of that contract is to be adopted, Bolton was bound to make them a title or respond in damages, but they were not bound to take any title short of a merchantable title. Applying the acceptance in full to the proposal as to the State street property, as appellees insist it should be, it was clearly, as appellees admit, a conditional contract or a conditional acceptance, which could not be enforced until the title was satisfactory to both parties. The title to the State street property did prove satisfactory to Bolton, and he accepted it and paid for it as soon as it was put in the proper form. The title to the Indiana avenue property did not prove satisfactory to appellees, and they did not accept it or offer to accept it in the condition in which it was.
If these two contracts had been written on separate pieces of paper and the identical words used in this acceptance had been written on the back of each of them and signed by Bolton, it does not seem there could have been any controversy as to the meaning of the acceptance. There is no reason known to the law why one who is accepting the proposal of a purchase of his land may not attach to that acceptance a condition that shall relieve him from liability in the event that his title shall not prove satisfactory to the proposed purchaser. It may be said that such an acceptance does not make a contract, and in the strict word we understand that it does not, but is a mere proposal and counter-proposal, which, if acted upon and the contract is consummated and the purposes of the'parties are carried out, serves all the purposes; but that need be no argument for holding, in the case at bar, that the acceptance, as applied to the Indiana avenue property, shall be so construed as to make a binding contract, when it is admitted that the same acceptance as related to the State street property did not make a binding contract. These proposals, and the acceptance of them, were in relation to real estate, and whatever contract was entered into, to be binding upon the parties and authorize an action for the nonperformance thereof, must be in writing. The fact that the contract with reference to the State street property, which we regard as an entirely independent contract from the one about which this litigation is, was carried out by the parties, can add nothing to the legal effect of the contract in the suit at bar. In other words, the performance of the contract in reference to the State street property was in no sense a performance or part performance of the contract in reference to the Indiana avenue property. The rights of the parties in the case at bar must be fixed by the proposal relative to the Indiana avenue property and the acceptance by appellant of it.
It is insisted that in the acceptance appellant used the words “if title proves satisfactory,” and that that precludes the idea that that condition of his acceptance related to both propositions. It seems to ns that the logic of such argument would equally lead to the legal conclusion that the writing was only an acceptance of the proposal in reference to the State street property, and that there was no written acceptance of the proposal as to the Indiana avenue property. We are, however, disposed to adopt the view that this acceptance did relate to both propositions and was so intended by the parties. The mere use of the word “title” in the singular, as used in the acceptance, instead'of the plural, does not seem to us sufficient reason for rejecting the language of the acceptance and holding that it shall apply only to the State street property. “In the construction of a contract where the language is ambiguous, courts uniformly endeavor to ascertain the intention of the parties and to give effect to that intention; but where the language is unambiguous, although the parties may have failed to express their real intention, there is no room for construction and the legal effect of the agreement must be enforced.” (Walker v. Tucker, 70 Ill. 527; Benjamin v. McConnel, 4 Gilm. 536; Smith v. Brown, 5 id. 309; Crabtree v. Hagenbaugh, 25 Ill. 214.) If we give the words of this acceptance their usual and ordinary effect, then it is apparent that there is no such contract between these parties as an action could be maintained upon it, unless appellees were satisfied with the title of appellant and offered to accept it and he failed or refused to convey such title as he had. Corcoran v. White, 117 Ill. 118; Lancaster v. Shaffer, 31 N. W. Rep. 690; Anglo-American Provision Co. v. Prentiss, 157 Ill. 506; Baker v. Holt, 56 Wis. 100; Northwestern Iron Co. v. Meade, 21 id. 474; First Nat. Bank v.
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Mr. Justice Ricks
delivered the opinion of the court:
The primary and controlling question, as we view it, is as to the legal effect of the contracts offered in evidence and made between the parties hereto. While the contracts were both upon the same piece of paper, it is apparent from the contracts themselves, as well as the evidence in the record, that they were entirely distinct. Huling & Co. were real estate brokers. The State street property that they proposed to sell to Bolton belonged to one Flanuigan, and the Indiana avenue property that they were proposing to purchase was for some customer of theirs whose name they did not disclose. The offers as made by appellees were each of them independent and each was signed separately by appellees. When these propositions were presented to appellant he made a single acceptance to both propositions by writing across the back of the paper upon which they were written, “I accept the within if title proves satisfactory.—James Bolton.” Appellant contends that this written acceptance completed all the contract made between the parties; that it is plain, unambiguous, and requires no construction other than such as the ordinary import of the words used would give it. Appellees claim that it must have a construction different to what the ordinary idea to be derived from its context would give, and ask that, inasmuch as the proposition to buy the Indiana avenue property had attached to it the condition that the title should be merchantable and a merchantable abstract should be furnished and brought down to date, and the proposition for the property that they were to sell to appellant on State street did not have that condition attached, this acceptance must be regarded as applying only to the State street property. In other words, the appellees contend that the court should divide this acceptance written by appellant on the back of these contracts, in such a manner as to make a part of it apply to one of them and the whole of it apply to the other. They do not set forth just how the division shall be made, but from the argument we are led to infer that their position is1 that the acceptance should be read, as to the Indiana avenue property proposed to be purchased of Bolton, as, “I accept.— James Bolton,” and as to the State street property proposed to be sold to Bolton the entire acceptance or all the words shall be given effect.
If this acceptance can, in the light of the law, be applied to each of these contracts without doing violence to some well known principle of law and without working an unreasonable result as applied to the two propositions, then the court is not warranted in rejecting any part of it. Mutuality is one of the elements ordinarily looked for in a contract. The proposition as to the Indiana avenue property, as made by appellees, was, so far as it affected them, upon the condition that the title should be merchantable. If it was not merchantable they were not bound to take it. If their theory of the acceptance of that contract is to be adopted, Bolton was bound to make them a title or respond in damages, but they were not bound to take any title short of a merchantable title. Applying the acceptance in full to the proposal as to the State street property, as appellees insist it should be, it was clearly, as appellees admit, a conditional contract or a conditional acceptance, which could not be enforced until the title was satisfactory to both parties. The title to the State street property did prove satisfactory to Bolton, and he accepted it and paid for it as soon as it was put in the proper form. The title to the Indiana avenue property did not prove satisfactory to appellees, and they did not accept it or offer to accept it in the condition in which it was.
If these two contracts had been written on separate pieces of paper and the identical words used in this acceptance had been written on the back of each of them and signed by Bolton, it does not seem there could have been any controversy as to the meaning of the acceptance. There is no reason known to the law why one who is accepting the proposal of a purchase of his land may not attach to that acceptance a condition that shall relieve him from liability in the event that his title shall not prove satisfactory to the proposed purchaser. It may be said that such an acceptance does not make a contract, and in the strict word we understand that it does not, but is a mere proposal and counter-proposal, which, if acted upon and the contract is consummated and the purposes of the'parties are carried out, serves all the purposes; but that need be no argument for holding, in the case at bar, that the acceptance, as applied to the Indiana avenue property, shall be so construed as to make a binding contract, when it is admitted that the same acceptance as related to the State street property did not make a binding contract. These proposals, and the acceptance of them, were in relation to real estate, and whatever contract was entered into, to be binding upon the parties and authorize an action for the nonperformance thereof, must be in writing. The fact that the contract with reference to the State street property, which we regard as an entirely independent contract from the one about which this litigation is, was carried out by the parties, can add nothing to the legal effect of the contract in the suit at bar. In other words, the performance of the contract in reference to the State street property was in no sense a performance or part performance of the contract in reference to the Indiana avenue property. The rights of the parties in the case at bar must be fixed by the proposal relative to the Indiana avenue property and the acceptance by appellant of it.
It is insisted that in the acceptance appellant used the words “if title proves satisfactory,” and that that precludes the idea that that condition of his acceptance related to both propositions. It seems to ns that the logic of such argument would equally lead to the legal conclusion that the writing was only an acceptance of the proposal in reference to the State street property, and that there was no written acceptance of the proposal as to the Indiana avenue property. We are, however, disposed to adopt the view that this acceptance did relate to both propositions and was so intended by the parties. The mere use of the word “title” in the singular, as used in the acceptance, instead'of the plural, does not seem to us sufficient reason for rejecting the language of the acceptance and holding that it shall apply only to the State street property. “In the construction of a contract where the language is ambiguous, courts uniformly endeavor to ascertain the intention of the parties and to give effect to that intention; but where the language is unambiguous, although the parties may have failed to express their real intention, there is no room for construction and the legal effect of the agreement must be enforced.” (Walker v. Tucker, 70 Ill. 527; Benjamin v. McConnel, 4 Gilm. 536; Smith v. Brown, 5 id. 309; Crabtree v. Hagenbaugh, 25 Ill. 214.) If we give the words of this acceptance their usual and ordinary effect, then it is apparent that there is no such contract between these parties as an action could be maintained upon it, unless appellees were satisfied with the title of appellant and offered to accept it and he failed or refused to convey such title as he had. Corcoran v. White, 117 Ill. 118; Lancaster v. Shaffer, 31 N. W. Rep. 690; Anglo-American Provision Co. v. Prentiss, 157 Ill. 506; Baker v. Holt, 56 Wis. 100; Northwestern Iron Co. v. Meade, 21 id. 474; First Nat. Bank v. Hall, 101 U. S. 822; Middaugh v. Stough, 161 Ill. 312; Eggleston v. Wagner, 46 Mich. 610.
“In order to convert a proposal into a promise, the constituents of the acceptance tendered must comply with and conform to the conditions and exigencies of the proposal. The acceptance must be of that which is proposed, and nothing else, and must be absolute and unconditional. Whatever the proposal requires to fulfill and effectuate acceptance must be accomplished, and the acceptance must include and carry with it whatever undertaking, right or interest the proposal calls for, and there must be an entire agreement between the proposal and acceptance in regard to the subject matter and extent of interest to be contracted. If the parties do not refer to the same things in the same sense the transaction is simply one of proposals and counter-proposals.” Eggleston v. Wagner, supra.
Appellees now insist that they did offer to take the title appellant had and brought themselves within the condition of his acceptance. We are not able to so interpret the evidence. On April 19,1890, appellees wrote appellant: “We are ready, and have been for a long time, to close the trade on Indiana avenue if you have the title fixed. * * * If you have the objections fixed that his attorney has made please let us know, so that we can close the sale.” On April 30 they again wrote appellant: “On April 19 we wrote you to see if you were ready to close the trade on Indiana avenue. * * * Let us know if you will be ready by Friday or Saturday, and if you will have all the quit-claims necessary to give good title.” On June 2 appellees again wrote appellant: “Regarding the Indiana avenue property that we sold for you last winter, the party who bought it is, and has been, entitled to a deed for the last three or four months. He has waited patiently, and the quit-claims that you were to have gotten ere this to fix the title can be obtained at once as well as by waiting.” Then on the 14th of June appellant wrote appellees: “We find it impossible to overcome all of the objections of Messrs. Matz & Fisher to the title to the lots 21 and 22. * * * Stanley apparently intends to do nothing in the matter and thus tie the property up indefinitely. With this view we see no other way out than to let the sale drop, unless the title can be accepted as it is.” On the 16th appellees replied: “You will find it not so very easy to let this matter drop before you get through. Regarding lots 21 and 22 the contract is on record,—accepted by Mr. Bolton in his own handwriting. * * * We have taken good advice, and shall proceed at once to compel him to perfect his title or pay the damages.” No other communication passed between these parties until the letter of October 25, which, in part, was as follows: “We would respectfully inform you that we are still ready (as we have been ever since the examination by our attorneys of the abstract to said property furnished by you) to carry out our part of the said contract. We have now waited a reasonable time in said matter, and at your request have given you every opportunity to carry out your part of the contract. We now demand a deed to said premises, and are ready to pay you the purchase price therefor mentioned in said agreement, and must further ask you to at once definitely inform us whether or not you will perform your agreement and deliver said premises.”
It is insisted that this last letter was an unconditional acceptance of whatever title appellant had. We do not think so. Appellees first told appellant that they were still ready, as they ever have been since the examination of Ms abstract, to carry out their part of the contract. It seems to us no rational interpretation of that part of the letter, in the light of the number of letters that had preceded it, could be given other than that the title that they were willing to accept was a merchantable title. They specifically refer to the contract, and in their several letters insist that the quit-claim deeds shall be obtained; that the objections of their attorneys shall be overcome or met; remind him that they have given him a reasonable time to carry out his contract; that they have taken good advice and shall proceed at once to compel him to perfect his title or pay the damages. In fact, the whole tenor of that letter relates back to the proposal and all the correspondence that followed it, and it seems to us to show conclusively upon its face that the then idea of appellees was that the acceptance of appellant could be construed as an unconditional acceptance of their proposal, and that the letter of October 25 would be sufficient to put him in default because of his inability to furnish the merchantable title their proposal called for. On the 14th of June Bolton practically offered to convey to them whatever title he had, and on the 16th of June they refused to accept that, and informed him that they had taken good advice and would proceed at once to compel him to perfect his title or pay the damages, and this letter of October 25 was but the last step in carrying out the declaration of the letter of June 16.
We think this contract was not such an one as entitled appellees to maintain their action, and that the trial court erred in refusing to make the holdings asked by appellant and in making the holdings asked by appellees, and that the Appellate Court erred in affirming the judgment of the trial court.
The judgments of the Appellate and circuit courts are reversed, and the cause is remanded to the circuit court of Cook county for such proceedings as are consistent with the views herein expressed.
Reversed and remanded.