Mr. Justice Scholfield
delivered the opinion of the Court:
The correctness of the ruling of the court below in dismissing the original bill, depends upon what the car truck company was required to do, by the terms of the written contract, to entitle it to a deed. The writing is explicit-in that respect. It says: “That if said company shall locate and construct upon the said tract of land first above [therein] described, the shops, buildings, plant and improvements aforesaid therein agreed to be constructed during the year ending on the first day of July, 1885, at an outlay of thirty thousand (30,000) dollars, a certain deed, [describing it particularly,] deposited in escrow for that purpose with Franklin D. Gray, shall be delivered to the said grantee therein named, and shall take full effect as of the day of its date.” The proviso in regard to the payment of $15,000 by Eames and Bigdon, and the further proviso authorizing Eames to declare the contract void for the not placing of $5000 worth of labor and materials upon.the designated tract of land in the construction of the buildings, are irrelevant to the question, because it is admitted that Eames and Bigdon did not pay the $15,000, and the car truck company did pay it. And it is also admitted that Eames did not elect to declare the contract void for the not placing of $5000 worth of labor and materials upon the designated tract of land in the construction of the buildings.
There is no allegation in the original bill that the execution of the writing was obtained by misrepresentation and fraud, and in the absence of such an allegation the writing must be accepted as the only evidence of the contract between the parties. The consideration for the execution of the deed is one thing, but the conditions to be performed precedent to its execution are other and entirely different things.
The original bill proceeds entirely upon the ground that the car truck company did not perform its part of the agreement with respect to the execution and delivery of the deed, and it was therefore incumbent on it to prove that the company did not locate and construct the shop buildings, etc., at an outlay of $30,000, during the year ending on the first day of July, 1885, as provided by the contract. It is not seriously contended that such proof was made, and it admits of no controversy that the evidence preserved in the record proves directly the reverse.
More difficulty is presented by the decree granting the prayer of the cross-bill. It is therein found, that on the 16th of September, 1884, the parties to the agreement set out in the original bill mutually agreed that the time for placing the $5000 of labor and materials upon the designated tract, to be used in the construction of said buildings, was extended from the first day of October to the first day of November, 1884, and the premises described in the deed in escrow were changed, so that the land to be conveyed is, instead of that described in the deed in escrow, “that “portion of the north-east quarter of the north-east quarter of section 17, bounded as follows: On the south by the north line of Fifty-seventh street; on the east by the west line of Halsted street, extending from the corner of Halsted and Fifty-seventh streets north about 169feet; thence of the same width, including seven lots, less a fraction of a lot, in depth, across the west boundary of said north-east quarter of the north-east quarter, so as to include therein five acres.” Both parties claim that there was a mutual agreement on the 16th of September, 1884, whereby the time was extended, in the respect mentioned, from the first day of October until the first day of November, 1884, and they agree that the land to be conveyed was also changed from that described in the deed in escrow, but they differ as to the description of that to be conveyed in lieu of it,—appellees contending that it is to be measured as recited in the decree, and appellants contending that it is to be as thus recited, with this exception: that the south line should be the center line, instead of the north line of Fifty-seventh street. But appellants further contend, that by this agreement Barnes was not to execute and deliver the deed until the car truck company had complied with its contract in respect to the erection of buildings, etc., and had also proceeded to manufacture car wheels, employing at least three hundred men in the business. Appellees deny that there was any such agreement.
The contention of appellants is sworn to by two witnesses. It is denied by twro witnesses with equal opportunity of knowledge, and, in our opinion, the latter are, to some extent, corroborated by circumstances. Chisholm, the president of the company, emphatically denies it, and Raymond, who was at the time attorney for the company, testifies that an agreement was made between the parties, and that on the same day, and immediately afterwards, he reduced it to writing, and sent a copy to Barnes, asking him'if it was correct, and that Barnes made no reply. He is corroborated as to the reducing of the agreement to writing, by Chisholm, and it is not denied by Barnes that the copy was received by him. The making of this writing was so soon after the making of the agreement that it excludes the idea that Raymond had forgotten. If it was not correct, it was either because he did not understand the agreement, or it was made incorrect willfully. There is no apparent motive why he should willfully have misstated the terms of the agreement. He is evidently disinterested, and it is hardly to be supposed that he could have been mistaken.
The writing of Raymond directly contradicts the two witnesses on behalf of appellants. But counsel for appellants insist that Raymond’s testimony shows that negotiations between Barnes and himself were continued after the letter was written and sent by him, and that Barnes declined to make any further agreement or sign any contract in the matter, but said he would do what was right if the other part of the contract was carried out. This is very true, but it has relation entirely to an attempt upon the part of Raymond to get subsequent modifications of the contract. He expressly states that it had no reference to the agreement made on the 16th of September, 1884. A circumstance corroborative is, that the Barnes employed Mr. Whiton as their attorney in this matter, and in attempting to adjust the differences between the parties, he made no claim that the execution of the deed was to be postponed, as it is now contended by appellants that it was, and proposed an adjustment entirely excluding that idea.
There was a dispute, as before observed, whether the deed should include or exclude one-half of Fifty-seventh street, making a difference of one acre of ground, or about that. This, of course, was subsequent to the agreement of the 16th of September, 1884. That dispute, it is shown, led to warmth of feeling, and, probably, bitterness of expression, and it was not until after the 16th of September, 1884, as we understand the evidence, that the circumstances occurred which seemed to have begotten distrust ‘in the "minds of the Barnes as to the success of the company’s enterprise; and so, it is readily discernible that the Barnes may have forgotten the time when they first insisted that the deed should not be delivered until after the company was manufacturing, with three hundred hands, etc. This is the most charitable view to take of the evidence.
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Mr. Justice Scholfield
delivered the opinion of the Court:
The correctness of the ruling of the court below in dismissing the original bill, depends upon what the car truck company was required to do, by the terms of the written contract, to entitle it to a deed. The writing is explicit-in that respect. It says: “That if said company shall locate and construct upon the said tract of land first above [therein] described, the shops, buildings, plant and improvements aforesaid therein agreed to be constructed during the year ending on the first day of July, 1885, at an outlay of thirty thousand (30,000) dollars, a certain deed, [describing it particularly,] deposited in escrow for that purpose with Franklin D. Gray, shall be delivered to the said grantee therein named, and shall take full effect as of the day of its date.” The proviso in regard to the payment of $15,000 by Eames and Bigdon, and the further proviso authorizing Eames to declare the contract void for the not placing of $5000 worth of labor and materials upon.the designated tract of land in the construction of the buildings, are irrelevant to the question, because it is admitted that Eames and Bigdon did not pay the $15,000, and the car truck company did pay it. And it is also admitted that Eames did not elect to declare the contract void for the not placing of $5000 worth of labor and materials upon the designated tract of land in the construction of the buildings.
There is no allegation in the original bill that the execution of the writing was obtained by misrepresentation and fraud, and in the absence of such an allegation the writing must be accepted as the only evidence of the contract between the parties. The consideration for the execution of the deed is one thing, but the conditions to be performed precedent to its execution are other and entirely different things.
The original bill proceeds entirely upon the ground that the car truck company did not perform its part of the agreement with respect to the execution and delivery of the deed, and it was therefore incumbent on it to prove that the company did not locate and construct the shop buildings, etc., at an outlay of $30,000, during the year ending on the first day of July, 1885, as provided by the contract. It is not seriously contended that such proof was made, and it admits of no controversy that the evidence preserved in the record proves directly the reverse.
More difficulty is presented by the decree granting the prayer of the cross-bill. It is therein found, that on the 16th of September, 1884, the parties to the agreement set out in the original bill mutually agreed that the time for placing the $5000 of labor and materials upon the designated tract, to be used in the construction of said buildings, was extended from the first day of October to the first day of November, 1884, and the premises described in the deed in escrow were changed, so that the land to be conveyed is, instead of that described in the deed in escrow, “that “portion of the north-east quarter of the north-east quarter of section 17, bounded as follows: On the south by the north line of Fifty-seventh street; on the east by the west line of Halsted street, extending from the corner of Halsted and Fifty-seventh streets north about 169feet; thence of the same width, including seven lots, less a fraction of a lot, in depth, across the west boundary of said north-east quarter of the north-east quarter, so as to include therein five acres.” Both parties claim that there was a mutual agreement on the 16th of September, 1884, whereby the time was extended, in the respect mentioned, from the first day of October until the first day of November, 1884, and they agree that the land to be conveyed was also changed from that described in the deed in escrow, but they differ as to the description of that to be conveyed in lieu of it,—appellees contending that it is to be measured as recited in the decree, and appellants contending that it is to be as thus recited, with this exception: that the south line should be the center line, instead of the north line of Fifty-seventh street. But appellants further contend, that by this agreement Barnes was not to execute and deliver the deed until the car truck company had complied with its contract in respect to the erection of buildings, etc., and had also proceeded to manufacture car wheels, employing at least three hundred men in the business. Appellees deny that there was any such agreement.
The contention of appellants is sworn to by two witnesses. It is denied by twro witnesses with equal opportunity of knowledge, and, in our opinion, the latter are, to some extent, corroborated by circumstances. Chisholm, the president of the company, emphatically denies it, and Raymond, who was at the time attorney for the company, testifies that an agreement was made between the parties, and that on the same day, and immediately afterwards, he reduced it to writing, and sent a copy to Barnes, asking him'if it was correct, and that Barnes made no reply. He is corroborated as to the reducing of the agreement to writing, by Chisholm, and it is not denied by Barnes that the copy was received by him. The making of this writing was so soon after the making of the agreement that it excludes the idea that Raymond had forgotten. If it was not correct, it was either because he did not understand the agreement, or it was made incorrect willfully. There is no apparent motive why he should willfully have misstated the terms of the agreement. He is evidently disinterested, and it is hardly to be supposed that he could have been mistaken.
The writing of Raymond directly contradicts the two witnesses on behalf of appellants. But counsel for appellants insist that Raymond’s testimony shows that negotiations between Barnes and himself were continued after the letter was written and sent by him, and that Barnes declined to make any further agreement or sign any contract in the matter, but said he would do what was right if the other part of the contract was carried out. This is very true, but it has relation entirely to an attempt upon the part of Raymond to get subsequent modifications of the contract. He expressly states that it had no reference to the agreement made on the 16th of September, 1884. A circumstance corroborative is, that the Barnes employed Mr. Whiton as their attorney in this matter, and in attempting to adjust the differences between the parties, he made no claim that the execution of the deed was to be postponed, as it is now contended by appellants that it was, and proposed an adjustment entirely excluding that idea.
There was a dispute, as before observed, whether the deed should include or exclude one-half of Fifty-seventh street, making a difference of one acre of ground, or about that. This, of course, was subsequent to the agreement of the 16th of September, 1884. That dispute, it is shown, led to warmth of feeling, and, probably, bitterness of expression, and it was not until after the 16th of September, 1884, as we understand the evidence, that the circumstances occurred which seemed to have begotten distrust ‘in the "minds of the Barnes as to the success of the company’s enterprise; and so, it is readily discernible that the Barnes may have forgotten the time when they first insisted that the deed should not be delivered until after the company was manufacturing, with three hundred hands, etc. This is the most charitable view to take of the evidence. The evidence is satisfactory that the extension of time from October 1 to November 1 was not regarded by the company as vital, but as a matter of convenience, only; and the change of the five acres from that described in the deed, to a different location, was regarded as desirable by Barnes,— certainly as much so as the extension of time was by the company. Mr. Frederick Barnes testified that he requested Chisholm to put in the original contract his representation that the company would employ and continue in employ, three hundred men, but Chisholm declined to do so, alleging that he did not want to bind the company to always have this business, for a period of ten years. The result was, the company did not, by that contract, bind itself to employ that number of men for any time. It would have been strange,— quite inconsistent,—that he should, subsequently, in order merely to obtain an extension of time for one month for the expenditure of $5000 in labor and materials in the buildings, have consented, in addition to the change in the description of the property conveyed, to this postponement of the execution and delivery of the deed. Somebody is mistaken, or there has been perjury. It is most charitable to suppose somebody has been mistaken in this matter, and if so, we think the evidence preponderates that the mistake is with the witnesses on behalf of appellants, in assigning a wrong time to the commencement of a claim they now insist upon, as to this change in the agreement, and have, undoubtedly, heretofore insisted upon as to proposed changes in the agreement, but which changes were never made.
It is contended the evidence shows misrepresentation and fraud as to the consideration of the agreement decreed to be specifically executed. We are unable to say that the evidence sustains this contention. We have found no evidence of the misrepresentation of an existing fact which we can say would justify a rescission, and hence a refusal to decree performance of the contract. Mere false representation of an intention, not amounting to a matter of fact, is no excuse for non-performan.ee. Kerr on Fraud and Mistake, (Bump’s ed.) p. 88; Fry on Specific Performance, (new Am. ed.) p. 150, sec. 191. The failure of the company to proceed in manufacturing, two witnesses, Messrs. Chisholm and Barnum, testify, is solely because of the failure of these appellants to do what they contracted to do. While there is some evidence of the insolvency of the company, there is evidence directly to the contrary.
It is said the ease is one of failure of consideration. That is hardly accurate. The consideration was tlie erection of the buildings, etc., at the cost of $30,000, by the first of July, 1885, and the payment of $15,000 to Franklin D. Gray by the company,—all of which was done. The motive influencing Fames, doubtless, was the anticipated benefits to result to his other property from the successful operation of a factory of this character in proximity to it. But he made no conditions in the contract in that respect, and mere expressions of opinion, hope, expectation and the like, relating to matters which, from their nature, situation or time, as here, can not be supposed to be within the knowledge or under the power of the party making the statement, do not justify the party to whom they are made, to rely upon and assume them to be true. 2 Pomeroy’s Eq. sec. 891.
We are unable to say that the court below erred in its findings of fact, or in the decree it rendered. The decree is affirmed.
Decree affirmed.
Mr. Justice Bailey : I am unable to concur in this decision.