{ "id": 2612154, "name": "Charles P. Treat v. Cora Smith", "name_abbreviation": "Treat v. Smith", "decision_date": "1907-12-23", "docket_number": "Gen. No. 13,533", "first_page": "262", "last_page": "277", "citations": [ { "type": "official", "cite": "139 Ill. App. 262" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "16 Ill., 492", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2589823 ], "opinion_index": 0, "case_paths": [ "/ill/16/0492-01" ] }, { "cite": "88 Ill. App., 136", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5277766 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app/88/0136-01" ] } ], "analysis": { "cardinality": 1115, "char_count": 31660, "ocr_confidence": 0.519, "pagerank": { "raw": 1.114690476913653e-07, "percentile": 0.5715842892770968 }, "sha256": "417648e906520b9a02836bc39fbcb49dc8d5945f827e719473fea417aa897afa", "simhash": "1:ecbf83e42430c18c", "word_count": 5613 }, "last_updated": "2023-07-14T18:35:52.863125+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Charles P. Treat v. Cora Smith." ], "opinions": [ { "text": "Mr. Justice Brown\ndelivered the opinion of the court.\nThere is in this case very little conflict of evidence. The contest is chiefly over the rules of law applicable to conceded facts.\nThe defendant, Charles P. Treat, although describing himself as of Chicago in conveyances, seems, during the longtime involved in the matters under discussion herein, to have almost continuously been away from it. He was oceupied in other\u2019 places far remote. He had an office in the Rookery Building in Chicago, but he was in that office and in Chicago but four or five times from 1891 to 1903, according to the testimony of his employee, Collins. Whether he was here more frequently before or after this twelve years, the record does not show. But he was the owner of land in Chicago divided into several hundred lots and platted under the name of O. P. Treat\u2019s subdivision, etc. In the advertisements of these lots his \u201coffice\u201d in connection with their sale was indicated to be at \u201cRoom 1106, Rookery Building, and also on the premises at the corner of Central Park avenue and Division street.\u201d\nIn August, 1890, a man named Decker seems to have been in charge of the business of Mr. Treat in relation to this land, in the office at the Rookery Building. Just when Mr. Decker left the office or employ of Mr. Treat does not appear, nor whether Mr. Decker, a Mr. Lane and a Mr. Collins were all there together. But the counsel for Mr. Treat stated in open court that \u201cMr. Decker was first there and Collins followed him,\u201d so that we may assume that Decker and Collins were not to any material extent contemporaneous. Mr. J. A. Lane was there, however, according to Mr. Collins\u2019 testimony, as head bookkeeper for Mr. Treat for several years after he, Collins, \u201cwent in there.\u201d \u201cHe passed on all the stuff,\u201d Collins says, \u201cI turned in.\u201d\nBut for several years Collins was the only representative or employee of Treat in his office in Chicago, which was moved from 1106' to 520 Rookery Building. He says, \u201cWe sublet desk room to other people. There was no one else in charge of Mr. Treat\u2019s businessand to the leading question, \u201cYou were the only one in charge of his (i. e,., Treat\u2019s) business ?\u201d he answered, \u201cI was the only one there.\u201d\nUnder date of August 20, 1890, the plaintiff, Mrs. Cora Smith, purchased and executed contracts in relation to twenty of the lots in Treat\u2019s subdivision, doing the business with Decker at the office in the Rookery Building. For each of the lots a separate contract was executed, and all were in the form set forth in the declaration in this case and recited in the statement hereto prefixed.\nMrs. Smith, after her first payment of $10 on each of the lots on receiving the contracts, made payments on each of the twenty contracts at somewhat irregular intervals between and including September 27, 1890, and June 9, 1891. On each of the five contracts which are involved in this suit there appear indorsements of $10, paid when apparently the contracts were delivered August 29, 1890, and $7 on September 27, 1890 (which would be seven days late under the strict terms of the contract, but within the ten days grace given therein), $7 on November 4, 1890 (15 days late), $7 on December 17, 1890 (27 days late), $7 January 20, 1890 (31 days late), $7 February 5, 1891 (16 days late), $7 March 2, 1891 (10 days late), $7 April 6, 1891 (17 days late), and $7 June 9, 1891 (50 days late) ; also on June 9, 1891, $3.08 for the taxes of 1890.\nIt may be assumed that payments were made on the other 15 contracts at the same time, although apparently there was some difference in the price and consequently in the installments on one or more of the lots.\nOn some account in connection with her purchases Mrs. Smith evidently paid $82.60 on June 2, 1892, also, and $5.0 on August 8, 1892, after which her payments ceased. She herself testified that her last payment \u201cseems\u201d to have been made on June 9, 1891, but we think that the account received by her from the defendant\u2019s office (Plaintiff\u2019s Exhibit 20) is evidence to the contrary.\nOn June 24, 1893, for an expressed consideration of $100, which may or may not have been -as much or more than she had paid on that contract, Mrs. Smith assigned one of the contracts to one Emma Mast, with the assent and concurrence of Mr. Oollins, who must have been in this acting as the agent of Mr. Treat, and this one lot was eliminated from the transactions between the parties hereto.\nAt or about November 25, 1893, an agreement was made between Mrs.. Smith and Mr. Treat, the latter acting through a representative, which the evidence fairly leaves us to infer was Mr. Collins\u2014although the indorsements involved are in the hand of Mr. Lane, \u201cthe head bookkeeper\u201d\u2014by which Mrs. Smith gave up any claim on fourteen of the contracts and cancelled them in consideration of having the money she had paid on them, which apparently amounted to $1,360.40, credited to her on whatever was due on the remaining five lots for interest, taxes or installments or principal.\nIn the execution of this arrangement the following indorsements (with a variation of a few cents only in one or two of the items) were made on each of the contracts involved here:\nNov. 25, \u201993, Received $4.47 for Grand Avenue sewer assessment.\nNov. 25, \u201993, Rec\u2019d $3.40 for 1891 tax.\nNov. 25, \u201993, Rec\u2019d $10.75 for first installment sewer tax.\nNov. 25, \u201993, Rec\u2019d $3.64 for 1892 tax.\nNov. 27, \u201993, Rec\u2019d $1.63 for second installment sewer tax.\nNov. 27, \u201993, Rec\u2019d $28.16 for interest to Nov. 30, 1893.\nNov. 27, \u201993, Rec\u2019d $210.03 on principal.\nThe indorsements altogether make on the five contracts the aggregate $1,705.83.\nAfter November 27, 1893, the matter affecting this transaction appearing in the record consists entirely of correspondence and a warranty deed of the lots in question with many others, made by Mr. Treat and wife to Homer E. Gross for the alleged consideration of $50,000 on October 22, 1902.\nAll the correspondence between the parties connected with the transaction does not appear. Various letters are referred to in answering communications, which are not in the record. But enough of it appears to show clearly, we think, the intentions and attitude of the parties on the material questions here presented.\nThe correspondence, so far as it appears in the record, begins with a letter purporting to be from O. P. Treat, the defendant himself, dated at 97 Gresham street, London, Rovember 16, 1898, which, it should be noted, is more than seven years after the last cash payment had been made on the lots by Mrs. Smith, and almost exactly five years after the last indorsement had been made on the contracts. In that letter Mr. Treat says: \u201cI could not buy your lots at present, as I have all of that sort of property that I can carry. It seems to me that there is no doubt that within a year or two there will be a good demand for them at fair prices.\u201d\nA strenuous attempt was made by the appellant to keep this letter out of evidence on the ground that it was not shown to be the letter of Mi*. Treat, or that it referred to the property involved here, and the action of the trial judge in admitting it is vigorously attacked in this court as erroneous.\nThe plaintiff testified that prior to receiving this letter she had addressed a letter to Mr. Treat, marked \u201cStrictly Personal,\u201d and that she had received this letter introduced in evidence purporting to be personally signed by him in London, in reply. She testified also that the lots referred to were the lots described in the five contracts introduced in evidence, which she purchased from Mr. Treat. Mr. Collins, a witness produced by the defendant, was asked on direct examination by the counsel for the defendant, if he was familiar with the handwriting of Mr. Treat, and answered that he was. Asked by counsel for defendant if the letter was in Mr. Treat\u2019s handwriting, he said \u201cNo, he didn\u2019t write the letterBut in this answer he was plainly referring to the body of the letter and was hardly ingenuous, for being immediately asked by the court if the signature was Mr. Treat\u2019s, he answered, \u201cYes, it is his signature\u2014it looks like his signature, and I think it is.\u201d\nIf the signature was Mr. Treat\u2019s, it certainly was of no importance that the body of the letter was the work of an amanuensis. The letter plainly treats the lots in question, at this very considerable length of time after the payments had ceased, as still the property of Mrs. Smith, in which she had at least a subsisting and substantial equitable interest.\nThe rest of the correspondence appearing in the record is entirely between Mr. Collins, before mentioned, who generally, however, signed his letters, \u201cC. P. Treat, Collins,\u201d and Mrs. Smith.\n\u2019 There were introduced three letters and a receipt from one George W. Wilbur to Mrs. Cora Smith, but two of these letters bore indorsements or additions by Mr. Collins and were admitted only to the extent and for the purpose of showing knowledge by Mr. Collins \u201cof what was being done and his action in the premises.\u201d The other letter and the receipt were stricken out of evidence by the court before the finding was made.\nThe letters from Collins to Mrs. Smith were introduced for the purpose of showing that the defendant considered and treated the right of forfeiture given by the contracts for the non-payment of instalments due promptly as waived, and had elected in accordance with the terms of the contract to continue them in force.\nIt is urged that they were inadmissible and can be held to prove nothing against Mr. Treat, the defendant, because there was no showing that Mr. Collins had authority to sign the name 'of Mr. Treat to these letters,\u2014that as interpreted by the plaintiff and the court below, they changed the contracts, and that Mr. Collins was a bookkeeper with only the powers ordinarily possessed by a bookkeeper and could not change the contracts.\nTo sustain this position counsel cite Mr. Collins\u2019 own testimony, who, although testifying that he was the only one in- charge of Mr. Treat\u2019s business in Chicago, that he received money on contracts for lots and carried on correspondence with the contracting parties, that he wrote the letters referred to and signed them with Mr. Treat\u2019s name, and that Mr. Treat was in Chicago but four or five times in the twelve years he worked for him, answered thus, over the repeated objections of defendant\u2019s counsel, to questions of the plaintiff\u2019s counsel who called him as a witness:\n\u201cQ. Who attended to all these real estate matters in connection with C. P. Treat\u2019s Subdivision ?\nA. I had charge of collecting the payments as made on contracts and when people were slow of poking them up. \u2022x- * -x-\nQ. Is it not a fact that you had the general charge of Mr. Treat\u2019s real estate business in Chicago, especially of real estate in C. P. Treat\u2019s Subdivision for Mr. Treat ?\n-x- * * A. Well, the interest I had in it was to collect such payments as were made.\nQ. Well, hadn\u2019t you general charge of it?\nA. Well, I paid the general taxes on it.\nQ. Hadn\u2019t you general charge of it?\nA. When Mr. Treat would send me the money I would pay the taxes.\nQ. Hadn\u2019t any other interest in it ? A. Ho. * * *\nQ. Do you remember when Mr. Peake (of the plaintiff\u2019s counsel) first came to see you a few weeks ago ?\nA. Yes, sir.\nQ. Did you at that time make the statement to him that you were in general charge of Mr. Treat\u2019s real estate business here in Chicago during the time that you have stated you were in his employ ?\nA. As to whether I was his agent or not ?\nQ. Whether you had general charge of his real estate ?\nA.- As I recollect it, this gentleman put the question in that way. I made the statement, and I probably said it to him, that is my recollection of it. My understanding of the question was that I had charge to keep his books, collect the payments as made, turn them over to him and report them to him\u2014in that way I had charge of it.\nThe Court: Let me understand you correctly. That to the best of your recollection he asked if you were general manager, as you understood it, as you now define your duties ?\nA. That is it exactly; that is just what I meant to say.\u201d\nHe was then asked on cross-examination by Mr. Treat\u2019s counsel: \u201cYou had no further authority that the authority just testified to ? A. Ho, sir.\u201d\nUpon this testimony and the legal proposition that \u201cone who deals with an agent is bound to know the extent of his authority,\u201d the defendant claims that he was not bound by the letters written by Collins.\nThe trial court was at liberty to judge of the directness, thoroughness and ingenuousness of Mr. Collins\u2019 denial of authority to write the letters which he did write, inferred by defendant\u2019s counsel from this testimony, and the rule of law alluded to certainly has its limitations; The principal is bound by the acts of his agent within the apparent authority which the principal knowingly permits the agent to assume or which he holds the agent out to the public as possessing. It was to an office of which Mr. Treat was, during the years when these letters were written, the only occupant, as an employee of Treat, and which Treat was hardly ever near, that persons desirous of dealing with the land in question were directed. The contracts themselves were executed by an agent or representative of Mr. Treat, not by Mr. Treat himself, and of that agent or representative, Mr. Collins, whatever his actual authority, seems to have been the ultimate sole apparent successor. Mr. Treat himself did not take the stand to deny the alleged unauthorized acts and letters of his agent, although at the time of the trial there had been on file for more than a year a bill of particulars which gave dates of alleged waivers by defendant, which he must have reasonably inferred were claimed to have been made by the acts or declarations of his sole representative here, Collins. Moreover, the defendant himself introduced in evidence, as a part of his case, two letters in the series, each signed \u201cC. P. Treat, Collins,\u201d one of which, dated May 20, 1899, was certainly material in the very view of the matter claimed to be correct by the plaintiff.\nWe cannot hold that the letters of Collins were improperly admitted, or that they must not be considered as binding on Treat, whose declarations by his agent they purported to be.\nThese letters running from May, 1899, to December 5, 1900, bear out the plaintiff\u2019s contention that during that time the contracts were by the defendant considered and treated as in force. They contained advice and suggestions as to Mrs. Smith\u2019s procuring loans on the lots and notified her of taxes and assessments and tax claims. They treated the property as primarily hers, but requested further payments on account of the contracts. As late as December, 1900, Mr. Collins (in the name of Treat) says, \u201cI am still waiting for you to make some payments on account. * * * I wish you would piase remit me something on account. * * I have made enough concessions to you and now expect you to take care of the property. I do not care to take hack any more of them. Have already taken back 15 out of 20, which is quite enough I think to ask of me.\u201d\nIt is said that a letter of Mrs. Smith received May 15, 1899, by Mr. Collins, and another received May 20, 1899, showed an abandonment on her part of the lots and of any attempt to fulfill her contract in the future. They were despondent and discouraged in tone, but we think they were not intended, and they certainly were not understood by the recipient, to be letters of abandonment. On May 22, 1899, we find Mrs. Smith, on the contrary, speaking about her \u201cequity,\u201d and asking advice as to what she should offer it for sale for. She evidently then did not regard her right in the property as abandoned. On August 19, 1899, Mr. Collins tells her of an offer he had of $1,000 for the five lots, and asks her if she will sell them for that sum, advising her to do so, although he assures her it is a low price. She did not owe a thousand dollars on them at that time, and it is not to be presumed that with this offer made to her she abandoned the lots. She evidently declined the offer and requested Mr. Collins to procure her a loan of $1,000 on the lots, and he replies under date of September 8, 1899, that he knows a party who he thinks would make the loan at 6 per cent, and says: \u201cI think yon are wise to borrow on the property and hold it for a time yet. You will certainly get more for it later.\u201d\nThe next question presented to us for decision then, is what effect this recognition by the defendant of Mrs. Smith\u2019s rights in the property for so many years after the last payments made by her or credits given to her on the contracts, had on his right to declare the contracts forfeited and the rights of Mrs. Smith forever annulled.\nThe appellee first calls attention to the peculiarity of the contracts in that they give to the vendor, in case of default in payments by the purchaser, an option by election to treat the covenants and liability of the purchaser as living, obligatory and enforceable, and to collect all the consideration money from the purchaser by proper proceedings in law or equity. She contends that the action of the appellant shows that he made his election, and also contends that having made it, he could not afterwards withdraw or modify it.\nWe are not prepared to say that this position is not well taken, nor that the appellant would not, after the course of conduct and declarations imputable to him, be compelled, in order to enforce his legal rights under the contracts, to proceed either in equity to foreclose the plaintiff\u2019s rights to the land, or at law to secure judgment against her, when he might levy on and sell her interest in these lots under execution.\nThe clause in the contracts, on which the defendant relies to avoid this result of the alleged election, assuming that it is proven, viz.: \u201cHotting herein contained shall be construed as a waiver of the right of said party of the first part to declare\u2019 this contract forfeited for non-payment as hereinbefore provided,\u201d may well, we think, be construed so as to make the first \u201cherein\u201d refer to that paragraph or section of the contract only, in which the clause occurs. In other words, it may well be considered that it is only the provision that the purchaser agrees to pay interest on any defaulted payment, which shall not have the effect of waiving the right of the vendor to declare the contract forfeited for such default.\nBut we do not feel ourselves called on to decide this question, for we are clearly of the opinion that even if without legal proceedings in equity or by execution, the defendant could properly have foreclosed and forfeited the interest of the plaintiff in these contracts and the land described in them, he could not do so except in the manner indicated by this court in Vider v. Ferguson, 88 Ill. App., 136, and by the courts whose decisions were therein cited, as alone effective where such communications had been made to the vendee in a contract like this as would induce in his mind the conviction that the provision that time was of the essence of the contract would not be insisted on. That manner involves a reasonable notice served on the vendee of an intention to be subsequently carried out, of resorting to the strict terms of the contract and declaring a forfeiture.\nHo such notice was given here\u2014no intimation that this course of enforcing defendant\u2019s rights was to be taken appears in the correspondence\u2014but under the date of August 3, 1901, a letter signed \u201cC. P. Treat, Collins,\u201d contained the announcement that the course had been adopted. \u201cYou must know,\u201d it says, \u201cthat the same\u201d (the contracts) \u201chave been cancelled on face of cont. for non-payment, consequently you have no further interest in the property,\u201d etc., and it appears by Mr. Collins\u2019 testimony that he wrote on the face of the five contracts, \u201cForfeited for non-performance of conditions,\u201d upon Mr. Treat\u2019s verbal order and instruction\u2014\u2022 Treat then being in Chicago, on January 5, 1901. These memoranda were signed by Mr. Treat. We fail to find any distinction making a difference in principle between the facts in Vider v. Ferguson (supra) and the case at bar, and this court is still of the opinion as to the rules of law applicable, that it was when the opinion in Vider v. Ferguson was rendered. We do not think the attempted forfeiture of the contracts was effective, nor that there is any evidence that before or after the attempt was made the plaintiff abandoned the said contracts until the conveyance of the lots by the defendant to a third party occurred on October 22, 1902.\nThe remaining question is the effect -of that conveyance on the rights of Mrs. Smith.\nWe think it gave her the right to treat the contracts as rescinded by the defendant at her election\u2014which she has made by bringing this suit, and that what this court said the parties did in Vider v. Ferguson, the parties here have done \u2014-made a rescission of the contract by mutual consent, the defendant ceasing to claim from the plaintiff any of the purchase money due by the terms of the contract, and the plaintiff ceasing to claim any interest in the premises described in them.\nUnder these circumstances, as the Supreme Court said in Hurd v. Denny, 16 Ill., 492, the vendee under the contracts was entitled to recover back what had been advanced without performing a condition precedent to a specific enforcement of the contract. This doctrine has not since been departed from.\nThe proper rule of damages seems to us to have been followed in computing them at the amount credited in the contracts, with interest from the time of the conveyance by the defendant to a third party.\nThe rulings on propositions of law held and refused are in accordance with our views herein expressed.\nThe judgment of the Superior Court is therefore affirmed.\nAffirmed.", "type": "majority", "author": "Mr. Justice Brown" } ], "attorneys": [ "Huff & Cook, for appellant; Hamlin & Boyden, of counsel.", "James S. Weight and \u00a1Robert I. Gregg, for appellee; Frederick Peake, of counsel." ], "corrections": "", "head_matter": "Charles P. Treat v. Cora Smith.\nGen. No. 13,533.\n1. Principal and agent\u2014hoio far latter may hind former. The principal is bound by the acts of his agent within the apparent authority which the principal knowingly permits the agent to assume or which he holds the agent out to the public as possessing.\n2. \"Vendor and vendee\u2014construction of contract as to election of rights. A contract for the purchase and sale of real estate which contained as well a forfeiture clause as a clause giving to the vendor in case of default in payment by the vendee an option by election to treat the covenants and liability of the. vendee as living, obligatory and enforceable and to collect all the consideration money from the vendee by proper proceedings at law or equity, is considered, but the court does not finally pass upon the question as to whether or not under the contract involved the right to a forfeiture is lost by an apparent election to keep the contract alive.\n3. Forfeiture\u2014when notice of intention to enforce, essential. A forfeiture cannot be enforced under a contract providing therefor in event of default without notice of intention to enforce a forfeiture where the party seeking to forfeit the same has by his conduct induced the other party thereto to believe that the provision that time whs of the essence of the contract would not be insisted upon.\n4. Contract\u2014when right to rescission arises. A vendee may rescind where the vendor without warrant and right has sought to enforce a forfeiture and has placed himself in a position where he cannot perform.\n5. Contract\u2014when purchase money may he recovered tipon rescission. A vendee of real estate may recover payments made under a contract to purchase where the vendor has illegally sought to enforce a forfeiture by making to a third party a conveyance of the property covered by the contract of purchase.\n6. Measure of damages\u2014in action to recover money paid under rescinded contract. Where a vendee is entitled to rescind, and has rescinded, he may recover as his measure of damages any money paid under the contract in question plus interest from the time of the commission of the act which entitled rescission.\nAssumpsit. Appeal from the Superior Court of Cook County; the Hon. Ben M. Smith, Judge, presiding.\nHeard in this court at the March term, 1907.\nAffirmed.\nOpinion filed December 23, 1907.\nStatement by the Court. This is an appeal from a judgment of the Superior Court of Cook county in favor of Cora Smith, the appellee, who was plaintiff helow and will he so denominated in the opinion, against Charles P. Treat, the appellant here and defendant below. The suit was begun below on February 14, 1905. It was in assumpsit, and the amended declaration on which the case was tried contained five special counts and the consolidated money counts. The special counts were, however, alike, except in the description of the lot involved in the transaction sued on.\nThe first count alleged that on August 20, 1890, the plaintiff and defendant entered into a contract in writing for the sale by the defendant to the plaintiff of lot twenty in block four of Treat\u2019s subdivision of the northeast quarter of the southwest quarter of section two, township thirty-nine, north, range thirteen cast of the 3rd P. 21., in Chicago, Illinois. The contract is then set out in Jicec verba.\nIt provides for the payment of $100 for the lot by the plaintiff to the defendant in this manner: $10 cash in hand, $7 or more, on September 20, 1890, and $7 or more \u201cat the end of each and every period of one month thereafter until the whole sum of $400 shall be fully paid, with interest at the rate of 6 per cent per annum from date. The interest was to be payable semi-annually and principal and interest were made payable at the office of Treat, \u201chis attorney, executors, administrators or assigns,\u201d in Chicago. Any improvements placed on the lot were to be held as a part of the security for the prompt payment of each of the payments contracted for.\nA clause relating to the payment of taxes reads:\n\u201cAnd also that he will well and faithfully in due season pay or cause to be paid all taxes and assessments \" * * subsequent to 1889.\u201d\n(EOTE. It is impossible to tell from the context to luhom the pronoun \u201che\u201d relates, but it may be assumed, as it was so treated, that it refers to the vendee.)\nCovenants as follows are included in the contract:\n\u201cIn case said party of the second part (i. e. Cora Smith) shall make default or fail to make any of the payments above mentioned at the time and times above limited (the said time and times of payment being hereby declared to be an essential part of this contract), or shall fail to perform punctually any of the covenants and agreements herein mentioned at such time or times and for ten days thereafter, then in such case this agreement and all the covenants and agreements on the part of the said party of the first part (i. e. Treat) herein contained shall at the option of the said party of the first part, his representatives or assigns, be and are declared null and void, and no longer binding, and all the right or interest either in law or equity of said party of the second part shall cease and be determined, and all the payments which shall have been made hereon, or in pursuance hereof, and all buildings and other improvements which are now on or shall hereafter be placed on said premises, shall be absolutely and forever forfeited to said party of the first part, and he shall have the right to re-enter and take possession, or at the election of the said party of the first part, his representatives or assigns, the covenants and liability of the said party of the second part shall continue and remain obligatory upon the said party of the second part, and may be enforced, and the said consideration money and every part thereof be collected by proper proceedings in law or equity from the said party of the second part, her heirs, executors, administrators or assigns.\nThe said party of the second part further agrees that in case she shall not make the payments above named on the days they are respectively made payable, she will pay interest on any payment or part payment which shall remain unpaid after due at the rate of 8 per cent per annum until paid. But nothing herein contained shall be construed as a waiver of the right of said party of the first part to declare this contract forfeited for non-payment as hereinbefore provided.\u201d\nThe contract is signed: Charles P. Treat,\nby Henry C. Decker [Seal] Attorney in fact.\nCora Smith. [Seal]\nAfter setting out the contract the declaration alleges that in pursuance of it the plaintiff paid on it at various dates sums amounting in the aggregate to $341.16; being $10 on August 20, 1890; $7 on September 27, 1890; $7 on November 4, 1890; $7 on December 17, 1890; $7 on January 20, 1891; $7 on February 5, 1891; $7 on March 2, 1891; $7 on April 6, 1891; $10.08 on June 9, 1891; $33.89 on November 25, 1893, and $238.19 on November 27, 1893; and that the defendant on the said respective dates accepted the payments without objection to the times when made, and at various times prior to the date when the final payment by the plaintiff was due under contract and subsequent thereto, requested the plaintiff to make payments under said contract and to provide for taxes and assessments levied upon said real estate, and made no attempt to forfeit said contract, but in his communications with said plaintiff referred to the same as in force, whereby the said defendant waived the provision that time was of the essence of said contract and elected to hold the plaintiff to her liabilities thereunder.\nIt also alleges that notwithstanding the premises, the defendant on October 22, 1901, sold and conveyed said real estate to one Gross by warranty deed, that the plaintiff made no objection to said sale and conveyance, and thereafter made demand upon the defendant for the sums of money paid by her under said contract, whereupon the contract became and was rescinded and the defendant became and w7as liable to repay to the plaintiff the payments made by plaintiff under the contract amounting to $341.16, and being so liable promised to pay the same.\nThe second, third, fourth and fifths counts respectively are in identically the same terms as the first, except that they deal respectively with contracts involving lot 21, lot 22, lot 23 and lot 24 in block four of Treat\u2019s subdivision.\nTo this declaration the defendant pleaded the general issue. On a rule to file a bill of particulars setting forth the dates of the waiver of time of performance of the contract alleged by plaintiff, she filed one giving the date of the payments on the contracts subsequent to the second one, as set forth in the declaration, and also the dates of August 19, September 8, September 12 and November 17, 1899, and February 15 and December 5, 1900\u2014these additional dates being those of certain letters written by Mr. Collins, an agent of the defendant, to the plaintiff, which will be alluded to in the opinion.\nThe cause was submitted to the court, a j nry being waived, and after a trial the court found the issues for the plaintiff and assessed the damages at $2,057.19, giving, after a motion for a new trial and a motion in arrest of judgment had been overruled, judgment for that amount against the defendant.\nIn this court the assignments of error challenge the rulings of the court below on the admission and exclusion of evidence, his holdings on certain propositions of law submitted to him and his refusal to find for the defendant.\nHuff & Cook, for appellant; Hamlin & Boyden, of counsel.\nJames S. Weight and \u00a1Robert I. Gregg, for appellee; Frederick Peake, of counsel." }, "file_name": "0262-01", "first_page_order": 278, "last_page_order": 293 }