Mr. Justice Scott
delivered the opinion of the court:
The Statute of Frauds is not interposed as a defense, so far as the original contract is concerned.
By the agreement of the parties Godwin was to exchange certain lots which he owned in Wabash place, in or near the city of Decatur, at a value of $4000, for a tract of land owned by Springer, lying just east of the city of Decatur, at a price of $7000. The land was encumbered by mortgages securing $2200, which Godwin was to assume, and he was to give his note to Springer for the balance of $800. Godwin was to enter into a contract by which he was to bind himself to give to the city of Decatur an option to purchase the land which he was acquiring from Springer and was to take that land subject to a lease to Fain. So far there is no question as to the terms of the contract. 'After the parties had, as they believed, closed the negotiations and arrived at a mutual understanding, Mr. Clokey, an attorney and Godwin’s office companion, was directed to prepare the necessary papers. After the instruments which he deemed necessary had been executed, and while they were in his possession, he notified Springer to that effect. The latter came to the office of Clokey and Godwin and there had an interview with them. It then developed that the papers prepared were unsatisfactory to Springer in three respects: First, the deed conveying the lots to him reserved the underlying coal; second, no provision was made by which Godwin was bound not to sell any clay off the land that was to be conveyed to him until such time as it should become evident that the tract could not be sold to the city of Decatur; and third, the instrument which had been prepared and signed by Godwin for the purpose of binding him to give to the city of Decatur an option on the real estate which he was to acquire, was not deemed by Springer to be in accordance with the verbal understanding between the parties.
This tract of land ownecl by Springer, lying east of the city of Decatur, was so situated that both Springer and Godwin desired that the city buy it for park purposes. Each of them owned considerable real estate in that neighborhood, and they believed that if the city would buy this land and establish a park there, that the other lands owned by them in that vicinity would be very materially enhanced in value. It is evident that the parties understood that the city of Decatur either could not or would not buy this property and pay for it in the near future; that if it was to be sold to the city it must be by a contract providing for the payment of at least the principal part of the purchase money at some period several years in the future. In the negotiations the advisability of offering the property to the city and giving it ten years’ time in which to pay for the same was discussed between Godwin and Springer. Godwin urged Springer to make such a proposition to the city, but Springer stated that the condition of his business was such that he did not want to have the purchase price of the land tied up for a term of years, and insisted that if the exchange of properties was made Godwin should bind himself to give the city an option to purchase the property. Godwin finally assented to this, but the parties afterwards disagreed, as was developed by the interview above referred to at the office of Clokey and Godwin, in reference to the terms of the option. Springer states that the option to the city was to give three years within which to purchase the property at $7000 and ten years’ time in which to make payment, with interest on the purchase price at five percentum per annum, while Godwin contends that he did not bind himself to offer the property to the city at any particular price, but only to give the city an option to buy it at some price that he might thereafter fix.
When Springer arrived at the office of Clokey and God-win, on the occasion above mentioned, he was shown, among other instruments, a paper in duplicate, signed by Godwin, which was drawn for the purpose of binding Godwin to give the city an option for the purchase of the property. To that instrument* Springer made two objections: (1) It did not provide at what price the property shoitld be offered to the city, and (2) it did not state what period the city should have within which to accept the proposition so to be made by Godwin. Thereupon, with Godwin’s consent, this instrument was altered by the interlineation therein of certain words, and as so altered it reads as follows:
"Whereas, Titus T. Springer and Nancy J. Springer, his wife, have this day conveyed to the undersigned certain lands in the south-west quarter of section eighteen (18), township sixteen (16), north, range three (3), east of the third principal meridian, lying north and east of the right of way of what was formerly known as the Indiana and Illinois Central Railroad Company, situated in the county of Macon and State of Illinois, in part consideration of the assurance on my part that I would tender said lands to the city of Decatur for park purposes; now, therefore, in fulfillment of said assurance, the undersigned covenants and agrees, at an early day during the present year, to make a written tender of said lands to said city for such park purposes, granting to said city the privilege of paying for said lands at any time within ten years from the date of said tender, with interest at the rate of five per cent per annum from date of acceptance of tender and contract made, payable annually or semi-annually, as preferred by said city, said city to have three years from tender in which to accept, and on receipt of the purchase price to convey said premises to said city by a good and sufficient warranty deed, my wife joining me therein, with release of homestead and dower.
“Executed in duplicate this 18th day of January, A. D. 1906.
W.'Frank Godwin (Seal).”
The words italicized are the words that were interlined after Springer had made his objections.
It will be observed that the undertaking, both before and after the alteration, did not specify the price at which Godwin was to offer the property to the city. Clokey and Godwin testified that the questions in reference to the clay and coal were at that time settled by Springer' waiving his claims in reference thereto; that the instrument above set out as it there appears was acceptable to Springer; that both the parties to the transaction expressed themselves as being satisfied with the various instruments, and that they were left with Clokey with the understanding that the abstracts should be passed upon, and if found to show merchantable titles that Clokey should then deliver the deeds and the contract. Springer testified that neither of the three matters in dispute was adjusted, and that he insisted that the instrument above set out was not only not in compliance with the agreement made by him with Godwin, but that it was entirety worthless, for the reason that it fixed no price at which the property should be offered to the city but left Godwin free to fix a price which would absolutely prohibit the city from purchasing. Springer went away and left all the papers that had been executed in Clokey’s possession. The next day he sent for and obtained a copy of the agreement pertaining to the option. A day or two thereafter he called at that office again. If Clokey' and Godwin are to be believed, he again made objections and again withdrew them. If he is to be given credence, he withdrew nothing.
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Mr. Justice Scott
delivered the opinion of the court:
The Statute of Frauds is not interposed as a defense, so far as the original contract is concerned.
By the agreement of the parties Godwin was to exchange certain lots which he owned in Wabash place, in or near the city of Decatur, at a value of $4000, for a tract of land owned by Springer, lying just east of the city of Decatur, at a price of $7000. The land was encumbered by mortgages securing $2200, which Godwin was to assume, and he was to give his note to Springer for the balance of $800. Godwin was to enter into a contract by which he was to bind himself to give to the city of Decatur an option to purchase the land which he was acquiring from Springer and was to take that land subject to a lease to Fain. So far there is no question as to the terms of the contract. 'After the parties had, as they believed, closed the negotiations and arrived at a mutual understanding, Mr. Clokey, an attorney and Godwin’s office companion, was directed to prepare the necessary papers. After the instruments which he deemed necessary had been executed, and while they were in his possession, he notified Springer to that effect. The latter came to the office of Clokey and Godwin and there had an interview with them. It then developed that the papers prepared were unsatisfactory to Springer in three respects: First, the deed conveying the lots to him reserved the underlying coal; second, no provision was made by which Godwin was bound not to sell any clay off the land that was to be conveyed to him until such time as it should become evident that the tract could not be sold to the city of Decatur; and third, the instrument which had been prepared and signed by Godwin for the purpose of binding him to give to the city of Decatur an option on the real estate which he was to acquire, was not deemed by Springer to be in accordance with the verbal understanding between the parties.
This tract of land ownecl by Springer, lying east of the city of Decatur, was so situated that both Springer and Godwin desired that the city buy it for park purposes. Each of them owned considerable real estate in that neighborhood, and they believed that if the city would buy this land and establish a park there, that the other lands owned by them in that vicinity would be very materially enhanced in value. It is evident that the parties understood that the city of Decatur either could not or would not buy this property and pay for it in the near future; that if it was to be sold to the city it must be by a contract providing for the payment of at least the principal part of the purchase money at some period several years in the future. In the negotiations the advisability of offering the property to the city and giving it ten years’ time in which to pay for the same was discussed between Godwin and Springer. Godwin urged Springer to make such a proposition to the city, but Springer stated that the condition of his business was such that he did not want to have the purchase price of the land tied up for a term of years, and insisted that if the exchange of properties was made Godwin should bind himself to give the city an option to purchase the property. Godwin finally assented to this, but the parties afterwards disagreed, as was developed by the interview above referred to at the office of Clokey and Godwin, in reference to the terms of the option. Springer states that the option to the city was to give three years within which to purchase the property at $7000 and ten years’ time in which to make payment, with interest on the purchase price at five percentum per annum, while Godwin contends that he did not bind himself to offer the property to the city at any particular price, but only to give the city an option to buy it at some price that he might thereafter fix.
When Springer arrived at the office of Clokey and God-win, on the occasion above mentioned, he was shown, among other instruments, a paper in duplicate, signed by Godwin, which was drawn for the purpose of binding Godwin to give the city an option for the purchase of the property. To that instrument* Springer made two objections: (1) It did not provide at what price the property shoitld be offered to the city, and (2) it did not state what period the city should have within which to accept the proposition so to be made by Godwin. Thereupon, with Godwin’s consent, this instrument was altered by the interlineation therein of certain words, and as so altered it reads as follows:
"Whereas, Titus T. Springer and Nancy J. Springer, his wife, have this day conveyed to the undersigned certain lands in the south-west quarter of section eighteen (18), township sixteen (16), north, range three (3), east of the third principal meridian, lying north and east of the right of way of what was formerly known as the Indiana and Illinois Central Railroad Company, situated in the county of Macon and State of Illinois, in part consideration of the assurance on my part that I would tender said lands to the city of Decatur for park purposes; now, therefore, in fulfillment of said assurance, the undersigned covenants and agrees, at an early day during the present year, to make a written tender of said lands to said city for such park purposes, granting to said city the privilege of paying for said lands at any time within ten years from the date of said tender, with interest at the rate of five per cent per annum from date of acceptance of tender and contract made, payable annually or semi-annually, as preferred by said city, said city to have three years from tender in which to accept, and on receipt of the purchase price to convey said premises to said city by a good and sufficient warranty deed, my wife joining me therein, with release of homestead and dower.
“Executed in duplicate this 18th day of January, A. D. 1906.
W.'Frank Godwin (Seal).”
The words italicized are the words that were interlined after Springer had made his objections.
It will be observed that the undertaking, both before and after the alteration, did not specify the price at which Godwin was to offer the property to the city. Clokey and Godwin testified that the questions in reference to the clay and coal were at that time settled by Springer' waiving his claims in reference thereto; that the instrument above set out as it there appears was acceptable to Springer; that both the parties to the transaction expressed themselves as being satisfied with the various instruments, and that they were left with Clokey with the understanding that the abstracts should be passed upon, and if found to show merchantable titles that Clokey should then deliver the deeds and the contract. Springer testified that neither of the three matters in dispute was adjusted, and that he insisted that the instrument above set out was not only not in compliance with the agreement made by him with Godwin, but that it was entirety worthless, for the reason that it fixed no price at which the property should be offered to the city but left Godwin free to fix a price which would absolutely prohibit the city from purchasing. Springer went away and left all the papers that had been executed in Clokey’s possession. The next day he sent for and obtained a copy of the agreement pertaining to the option. A day or two thereafter he called at that office again. If Clokey' and Godwin are to be believed, he again made objections and again withdrew them. If he is to be given credence, he withdrew nothing. A few days later he attempted to see Godwin again in reference to the matter but failed to do so as the latter was then out of the State, and thereupon he sold and conveyed his property to the Decatur Brick Company for cash.
It is entirely clear from this record that by the original arrangement a part of the consideration which Springer was to receive was a binding contract executed by Godwin, by which the latter was to be obligated to offer the property in question at some fixed price to the city of Decatur for park purposes. It is also apparent that the agreement on this subject signed by Godwin, which is above set out, did not bind him to make any offer to give to the city any option which .would be any consideration whatever for the conveyance of real estate to him by Springer, for the simple reason that under that agreement he could fix the price at one million dollars, or a greater sum, when he offered the property to the city, and Springer’s purpose in requiring that the city be given an option would in that manner be entirely defeated. We think it extremely doubtful whether Springer agreed to accept that contract in the form in which it was written and offered to him. This document pertaining to the option, both as originally written and as altered, was mere waste paper. It was absolutely without value. It would be so understood by any man of ordinary business capacity, and Springer does not seem to be deficient in that respect. To offer that document to Springer was to offer him nothing, when it is entirely apparent from this record that he expected to receive something of value. Godwin’s obligation, so far as any substantial thing is concerned, would have been no less had he refused to sign any agreement whatever pertaining to the option. His attempt to force Springer to accept this worthless piece of paper does not commend itself to our sense of right. If Springer did not agree to accept the contract in the form in which it was written, it follows, as a matter of course, that specific performance should not have been decreed. If, on the other hand, he agreed to accept the contract in that condition, the question whether a court of equity, in the exercise of its discretion, should award specific performance arises.
“It is the settled doctrine in this State that a party can not, as a matter of right, have a contract specifically enforced in equity, but that the exercise of this power rests in the sound discretion of the court, in view of the terms of the contract and the surrounding circumstances.” East St. Louis Railway Co. v. City of East St. Louis, 182 Ill. 433, and cases there cited.
It is true, as stated in Chicago, Burlington and Quincy Railroad Co. v. Reno, 113 Ill. 39, that no positive rule can be laid down governing the exercise of the discretion of a court of equity in such cases. Each controversy of this character must be determined upon its own facts. Specific performance may not be refused from mere whim or caprice, but where there is in the case some substantial element which moves the conscience of the chancellor and makes it appear to him to be unjust to decree the relief sought it may be denied. Godwin, so far as appears from this record, has expended no money on account of this transaction, except such trifling sum as he may have paid Clolcey for preparing papers and examining Springer’s abstract, and such amount as he may have paid for the use of a horse which he furnished to Fain for a short time, after this suit was commenced, in accordance with the terms of Fain’s lease. He has made no improvements on the Springer land and has never been in possession thereof unless Fain became his tenant, and then only by virtue of the fact that the tenant was in the actual occupancy of the premises. On the other hand, if the court requires Springer to specifically perform and accept the option contract which has been tendered him, he will be forced to take, as a part of the consideration for his conveyance, that which cannot profit him, when in the first instance, at least, something of value was intended. The chancellor, in the exercise of his discretion, according to our view, should have refused the' relief sought.
Mr. Gray, who both in the circuit court and in this court acted as one of the solicitors for appellants and who took an active part in the trial of the case in both courts, testified in the circuit court on behalf of his clients. His testimony, while material upon one phase of the case, does not relate to the question upon which the decision of the case turns. Under these circumstances we deem it unnecessary to say' anything in regard to the course which he pursued.
The decree of the circuit court will be reversed and the cause will be remanded, with directions to dismiss the bill for want of equity.
Reversed and remanded, with directions.