Mr. Justice Scott
delivered the opinion of the Court:
The written contract between the parties which complainants seek to have specifically performed, is set forth in the bill, from which it appears complainants sold to defendants certain real property described definitely as being in the city of Elgin, on which there was a planing mill, and certain machinery particularly described in the agreement, and also the right to use for manufacturing purposes a certain quantity of water running in the Fox river, at and for a certain price to be paid by defendants. As part payment defendants were, by the terms of the agreement, to assume and pay a mortgage on the premises, and give their promissory note payable within five years from the date the contract was to be performed. The contract was to be performed by both parties on the first day of April, 1881. The real estate described in the contract was to be conveyed by complainants to defendants by warranty deed, in fee simple, and a bill of sale of the machinery described in the contract was to be made and delivered with the deed, and possession given. On the first day of April, 1881, complainants tendered to defendants a deed for the lot sold, and also a bill of sale for the machinery, and demanded a compliance with the contract by defendants, which they refused to do.
There is no question made as to complainants’ title to the real estate and the water power mentioned in the contract, nor that complainants tendered at the appointed time a sufficient warranty deed for the property. Defendants placed their refusal to comply with the contract on other grounds, which will be presently noticed. It may be remarked the testimony concerning the matters in contention between the parties is so conflicting, it is exceedingly difficult to ascertain the exact facts. The parties to this transaction seem to be honorable people, and the conflicting statements as to the material facts may arise from honest differences.
So far as the delivery of the possession of the real property is concerned, defendants are in no position to make any just complaint. At the time the contract was made, on the 24th day of December, 1880, the mill situated on the lots was in possession of Smith Hoag. He claimed he was entitled to three months’ notice to surrender the possession, which was accorded to him. Notice was, in fact, given, so that he would have to give possession on the day the parties were mutually obligated to perform the contract. The testimony is full to the point, Hoag was willing to surrender the possession at the appointed time, and no doubt would have done so had he not been assured by defendants that he need not do it on their account. On this branch of the case there is ino real controversy. The matters insisted upon as an excuse for the non-performance of the contract are of no very great importance, and do not seem to affect the value of the property in any considerable degree. Complaint is made the water wheel was out of repair, or perhaps was not in as good condition as it was represented to be. The defect that was found to exist could have been made good at a trifling expense. One witness said it could be done in an hour or two, at a cost of two dollars, and another stated that it would cost fifteen dollars to make the repairs. The condition of the wheel was unknown to complainants, and had their attention been called to it the necessary repairs would no doubt have been made, so there could have been no complaint on that score.
The parties do not agree as to the movable machinery that was agreed to be sold to defendants, and that was to be embraced in the bill of sale that was to be made. Defendants insist they bought other things than those enumerated in the w'ritten agreement. As to what was in fact agreed to be sold, there is a disagreement, and no doubt an honest one. It is claimed defendants bought all the machinery that was in the mill at the time the contract was made, except a new belt. As has been seen, Hoag was in possession of the mill, and claimed the belt and some other things as his own, and that he had the right to remove them. His claim of ownership to many of the articles of machinery was disputed, and there is evidence that affords some ground for the belief that complainants honestly thought they owned all that was in the mill except the belt, and that was expressly excepted from the articles sold, in the agreement. Be that as it may, before the contract was written one of defendants and one of complainants went to the mill to examine the machinery. Defendant made a memorandum of articles of machinery, and it seems it was from that memorandum the agreement was written. At that time defendant said the boys at the mill had told him that other belts did not belong to complainants, and there is evidence that tends to show that defendants were told, previous to signing the contract,- if there were any belts belonging to Hoag, complainants would buy them or furnish new ones. But the evidence will show complainants were allowed no opportunity to supply any articles of machinery, after it was discovered some may have been wanting, to fulfill the contract. Some complaint is also made that Hoag had a carpenter shop on the premises that he insisted he would not remove before the time of contract was to be performed. It occupied a small space, and did in no way affect the profitable use of the mill for the time being. As the evidence is understood, Hoag bad no valid right to keep the shop there for any definite time, and could have been ejected at any time, and no doubt would have been had defendants not expressly told Hoag he need not surrender the premises on their account. There was a platform, and what is called a “lean-to, ” connected with the mill, both of which stood on the land of an adjoining owner; but it does not appear he claimed any interest in the platform itself, or the “lean-to, ” so that fact occasioned no serious detriment.
Conceding, as may be done, there were some articles of machinery in the mill that defendants might fairly insist should go with the purchase, that in fact belonged to Hoag, complainants were allowed no opportunity to supply the wanting machinery. Some time before the day appointed for performing the contract, defendants had absolutely refused to perform it, and told Hoag he could suit himself about moving out of the planing mill. There is a conflict in the testimony as to the cause they assigned for the non-performance of the contract, but none as to the fact they absolutely refused to go on with the contract. Had they pointed out the articles of machinery they insisted they had bought, and when it was ascertained that Hoag claimed some of them, complainants could have supplied such as Hoag claimed to own. There is some evidence tending to show defendants knew that complainants disputed Hoag’s ownership of anything in the mill except a new belt, and that they never pretended to sell. On the trial, after it was disclosed by the testimony of Hoag that he claimed some of the machinery, complainants obtained leave to amend their bill, which they did by stating that they had learned for the first time while the witness (Hoag) was testifying in the case, that he claimed to be the owner of a portion of the machinery in the mill, and while they believe themselves to be the owners of such property, yet if it should be found otherwise they were willing to offer and allow defendants a reasonable compensation therefor.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Scott
delivered the opinion of the Court:
The written contract between the parties which complainants seek to have specifically performed, is set forth in the bill, from which it appears complainants sold to defendants certain real property described definitely as being in the city of Elgin, on which there was a planing mill, and certain machinery particularly described in the agreement, and also the right to use for manufacturing purposes a certain quantity of water running in the Fox river, at and for a certain price to be paid by defendants. As part payment defendants were, by the terms of the agreement, to assume and pay a mortgage on the premises, and give their promissory note payable within five years from the date the contract was to be performed. The contract was to be performed by both parties on the first day of April, 1881. The real estate described in the contract was to be conveyed by complainants to defendants by warranty deed, in fee simple, and a bill of sale of the machinery described in the contract was to be made and delivered with the deed, and possession given. On the first day of April, 1881, complainants tendered to defendants a deed for the lot sold, and also a bill of sale for the machinery, and demanded a compliance with the contract by defendants, which they refused to do.
There is no question made as to complainants’ title to the real estate and the water power mentioned in the contract, nor that complainants tendered at the appointed time a sufficient warranty deed for the property. Defendants placed their refusal to comply with the contract on other grounds, which will be presently noticed. It may be remarked the testimony concerning the matters in contention between the parties is so conflicting, it is exceedingly difficult to ascertain the exact facts. The parties to this transaction seem to be honorable people, and the conflicting statements as to the material facts may arise from honest differences.
So far as the delivery of the possession of the real property is concerned, defendants are in no position to make any just complaint. At the time the contract was made, on the 24th day of December, 1880, the mill situated on the lots was in possession of Smith Hoag. He claimed he was entitled to three months’ notice to surrender the possession, which was accorded to him. Notice was, in fact, given, so that he would have to give possession on the day the parties were mutually obligated to perform the contract. The testimony is full to the point, Hoag was willing to surrender the possession at the appointed time, and no doubt would have done so had he not been assured by defendants that he need not do it on their account. On this branch of the case there is ino real controversy. The matters insisted upon as an excuse for the non-performance of the contract are of no very great importance, and do not seem to affect the value of the property in any considerable degree. Complaint is made the water wheel was out of repair, or perhaps was not in as good condition as it was represented to be. The defect that was found to exist could have been made good at a trifling expense. One witness said it could be done in an hour or two, at a cost of two dollars, and another stated that it would cost fifteen dollars to make the repairs. The condition of the wheel was unknown to complainants, and had their attention been called to it the necessary repairs would no doubt have been made, so there could have been no complaint on that score.
The parties do not agree as to the movable machinery that was agreed to be sold to defendants, and that was to be embraced in the bill of sale that was to be made. Defendants insist they bought other things than those enumerated in the w'ritten agreement. As to what was in fact agreed to be sold, there is a disagreement, and no doubt an honest one. It is claimed defendants bought all the machinery that was in the mill at the time the contract was made, except a new belt. As has been seen, Hoag was in possession of the mill, and claimed the belt and some other things as his own, and that he had the right to remove them. His claim of ownership to many of the articles of machinery was disputed, and there is evidence that affords some ground for the belief that complainants honestly thought they owned all that was in the mill except the belt, and that was expressly excepted from the articles sold, in the agreement. Be that as it may, before the contract was written one of defendants and one of complainants went to the mill to examine the machinery. Defendant made a memorandum of articles of machinery, and it seems it was from that memorandum the agreement was written. At that time defendant said the boys at the mill had told him that other belts did not belong to complainants, and there is evidence that tends to show that defendants were told, previous to signing the contract,- if there were any belts belonging to Hoag, complainants would buy them or furnish new ones. But the evidence will show complainants were allowed no opportunity to supply any articles of machinery, after it was discovered some may have been wanting, to fulfill the contract. Some complaint is also made that Hoag had a carpenter shop on the premises that he insisted he would not remove before the time of contract was to be performed. It occupied a small space, and did in no way affect the profitable use of the mill for the time being. As the evidence is understood, Hoag bad no valid right to keep the shop there for any definite time, and could have been ejected at any time, and no doubt would have been had defendants not expressly told Hoag he need not surrender the premises on their account. There was a platform, and what is called a “lean-to, ” connected with the mill, both of which stood on the land of an adjoining owner; but it does not appear he claimed any interest in the platform itself, or the “lean-to, ” so that fact occasioned no serious detriment.
Conceding, as may be done, there were some articles of machinery in the mill that defendants might fairly insist should go with the purchase, that in fact belonged to Hoag, complainants were allowed no opportunity to supply the wanting machinery. Some time before the day appointed for performing the contract, defendants had absolutely refused to perform it, and told Hoag he could suit himself about moving out of the planing mill. There is a conflict in the testimony as to the cause they assigned for the non-performance of the contract, but none as to the fact they absolutely refused to go on with the contract. Had they pointed out the articles of machinery they insisted they had bought, and when it was ascertained that Hoag claimed some of them, complainants could have supplied such as Hoag claimed to own. There is some evidence tending to show defendants knew that complainants disputed Hoag’s ownership of anything in the mill except a new belt, and that they never pretended to sell. On the trial, after it was disclosed by the testimony of Hoag that he claimed some of the machinery, complainants obtained leave to amend their bill, which they did by stating that they had learned for the first time while the witness (Hoag) was testifying in the case, that he claimed to be the owner of a portion of the machinery in the mill, and while they believe themselves to be the owners of such property, yet if it should be found otherwise they were willing to offer and allow defendants a reasonable compensation therefor. That was done by a decree of the court, and the facts of the case seem to bring it within the rule of law, where compensation’ may be made to the purchaser for that which is wanting, and the party required to perform the contract. The doctrine of the cases in this and other courts is, that although there may be a deficiency in the property sold, if the deficiency is inconsiderable, and does not materially affect the value of the remainder, the purchaser may be compelled to accept compensation for such deficiency, and perform the agreement. (De Wolf v. Pratt,, 42 Ill. 198.) Where the purchaser gets substantially all for which he contracted, he ought not to be permitted to refuse to go on and perform the contract on account of a slight deficiency, when full compensation can be made in money, and where the deficiency is occasioned by no bad faith on the part of the vendor. The rule on this subject is a sound one, otherwise there might be in many cases a failure of justice. It is seldom the facts present a stronger case for the application of that rule of compensation which is often adopted that justice may be done. The testimony is to the effect complainants in good faith believed they were owners of all the machinery they sold to defendants with the mill. The. bill of sale they tendered contained all that was specified in the written agreement, and it seems to have been in the mill ready to be delivered. If, as defendants insist, other machinery not specified in the written contract was, in fact, sold with the mill, and which was afterwards claimed by the occupying tenant, complainants ought to have been allowed, on demand being made upon them to do so, an opportunity to supply it; or, in the absence of such opportunity, it was just they should be permitted, when it was discovered some machinery was wanting, to offer compensation, as was done. In this respect the action of the court was in conformity with equitable principles generally recognized as applying in such cases.
On the whole testimony considered, it is thought the decree is right, and it will be affirmed.
Decree affirmed.