Iglehart v. Gibson

Citations

• 56 Ill. 81

Syllabus

<p>1. Forfeiture of contract—waiver of right thereto. Where a series of promissory notes was given for the purchase price of land, and the contract of sale reserved to the vendor the right to declare a forfeiture thereof in case of default in the payment of any one of the notes within a specified time after its maturity, a transfer by the vendor of the last note in the series to a tona fide holder, after default in respect to one of the prior notes,, and knowledge thereof, would operate as a waiver of the right to declare a forfeiture for such default.</p> <p>2. By the transfer of the note last in the series, the vendor was debarred the right of rescinding the contract of sale on account of default in the payment of any of those still remaining in his hands, either under the power given in it or otherwise, because, by such transfer, he had put it out of his power to terminate the contract as to the whole extent to which it remained executory on the part of the vendee.</p> <p>3. Same—right of vendee to treat the eontraet as rescinded. An attempt by a vendor to declare a forfeiture of the contract of sale, under a power therein given, in case of default on the part of the vendee, when the vendor has, by his acts, waived his right so to do, would be wrongful, and put him in fault, so that the vendee would be at liberty to treat the contract as rescinded, stop short in its performance, and when he paid the note which had been assigned, he could sue the vendor in an action at law, and recover back all that he had paid under the contract, although, by the terms of the contract, if the forfeiture had been rightfully declared, all that had been paid by the vendee would have become forfeited to the vendor.</p> <p>4. Notice — wlw chargeabletherewith. Where a note, payable at the office of a particular banker, was placed in his hands, before maturity, for collection, by an agent of the payee, that would constitute the banker the agent of the owner, in respect to the note, and