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eBook details

• Title: Tolbird v. Howard
• Author : Supreme Court of Illinois
• Release Date : January 26, 1969
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 61 KB

Description

Plaintiffs, Jerry Tolbird and Lora Tolbird, sellers, sued defendants, James M. Howard and Alma R. Howard, purchasers, to recover
certain unpaid installments allegedly due on an installment contract for the sale of real estate. Also included in a separate
count is a complaint for judgment on a $552 promissory note given plaintiffs by defendants at the time of the sale. Defendants
answered setting up numerous defenses and counterclaimed for $552 alleging plaintiffs misrepresented their ownership of the
property. The trial court, after a bench trial, entered judgment against plaintiffs on the complaint and against defendants
on the counterclaim. The Appellate Court for the Fourth Judicial District reversed the trial court judgment for defendants
as to the contract installments and affirmed the judgment against defendants on their counterclaim, holding the contract valid
and enforceable but the note unenforceable. (101 Ill. App.2d 236.) We granted leave to appeal. With the reservation hereinafter noted we affirm the Appellate Court judgment as to count II relating to defendants' liability
under the installment contract. Its affirmance of the trial court's judgment as to count I, however, must be reversed. That
count sought judgment upon the promissory note above referred to. The trial court entered judgment for defendants, but made
no findings of fact. It is necessary for us to consider only one of the defenses raised by defendants, for the Appellate Court's
disposition of the other defenses in its discussion of the contract liability is also applicable to the note. The exceptions
to this are defendants' contentions regarding the absence of consideration and the existence of a valid, oral agreement entered
into contemporaneously with the execution of the written contract. That contract obligated plaintiffs to furnish defendants
with an abstract showing merchantable title in plaintiffs, but specified no date for delivery of the abstract. Defendants
contend the parties discussed this, and plaintiffs agreed to furnish this evidence of title prior to the due date of the second
installment. Such discussion and agreement never occurred according to plaintiffs.

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