Walker v. Douglas

Citations

• 70 Ill. 445

Syllabus

<p>1. Contract—rule of construction. Contracts should be so construed as to give effect to the intention of the parties, and where that intention is sufficiently apparent, effect should be given to it, even though violence be thereby done to its words; for greater regard is to be had to the clear intent of the parties, than to any particular words they may have used in the expression of their intent.</p> <p>2. Contract construed—whether executed or executory. A contract, under seal, recited that the party of the first part “has this day sold” to the party of the second part certain property, etc., which was to be paid for in instalments, extending through a period of eighteen months. It also contained a clause by which the party of the first ¡Dart bound himself, in a penal sum equal to double the amount of the purchase money, to convey the property upon payment of all of the instalments ; and a further clause, that the party of the second part might, at the expiration of two years, elect whether he would affirm the contract, and if he should determine to rescind it, the party of the first part should take back the property, and refund whatever had been paid, with interest from the time of payment: Held, that it was not the intention or understanding of the parties that the contract was in anywise executed, but that it was purely executory, and that no present estate, either legal or equitable, was intended to be thereby vested in the party of the second part.</p> <p>3. Evidence. Parol evidence of the contents of the private books of a third party, without any basis being laid therefor, is incompetent.</p> <p>4. Payment—presumption. When a promissory note past due is in the possession of the maker, the law will infer, from this fact alone, unexplained, that it has been paid.</p> <p>5. Specific performance. To entitle a party to a specific performance, he must show that he has been in no default, and that he has taken all proper steps towards the performance on his pa