Downing v. Plate

Citations

• 90 Ill. 268

Syllabus

<p>1. Tender—when less than sum due may avail. Where a vendor of land obtains possession of his contract of sale, upon which payments made to him have been indorsed, and wrongfully destroys the same, a tender to him by the purchaser of a less sum than is found to be due on the contract, before suit., with an offer in the bill to pay whatever may be found to be due, will be sufficient to maintain a bill for specific performance. It is sufficient in such case for the purchaser to tender or offer to pay, before suit, what he believes to be due, and he will not be turned out of court if he proves to have been mistaken as to the amount due.</p> <p>2. Costs—on hill for specific performance. Where a complainant, seeking the specific performance of a contract to convey land, tenders a less sum than is found to be due, if the defendant should by his answer offer to convey on payment of the sum as found by the court, which the complainant refuses to do, claiming the proper amount to be less, the court would not subject the defendant to the costs of the litigation; hut if the defendant claims a much larger sum than is due him, and denies the complainant’s right to any relief, and has destroyed the evidence of payments so that the complainant can not know the precise amount due, and tenders a less sum, the court, on granting the relief sought, may require the defendant to pay the costs.</p> <p>3. Evidence—presumption from destruction of evidence. Where a party destroys the evidence of payments made to him upon a purchase of land, wrongfully, if not fraudulently, every presumption as to the subject matter will prevail against him; and if he offers to convey, upon the payment of a given sum, at the time of such destruction, the court will be fully warranted in finding that no more than such sum was due after deducting the payments.</p> <p>4. Same—weight of testimony of party destroying written evidences. Where a vendor of land wrongfully destroys the vendee’s contract of purchase