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Mr. JUSTICE WILKIN delivered the opinion of the court:

In the county court of Cook county the county collector made application for judgment on account of the delinquent fifth installment of a specialassessment levied by the city of Chicago for the improvement of Prairie avenue. The appellant appeared and filed an objection, which sets forth that when application was made in the previous year to obtain a tax judgment for the delinquent fourth installment of the same assessment, the county court refused judgment because of the invalidity of the ordinance in the special assessment proceeding. This former finding in favor of the appellant, it is claimed, is res judicata. To sustain his objection he offered in evidence the petition, assessment roll, judgment of confirmation, and the objections and all other papers and files belonging to the special assessment proceeding. He next offered the judgment of the county court refusing judgment on said former installment, and also the objections filed by him therein, and showed by a witness who was present at that trial that the court refused judgment on account of the invalidity of the ordinance. All of this evidence was admitted, but after hearing it the court found against the appellant.

This record presents the question of whether an order of the county court refusing judgment for one installment of a special assessment is conclusive on an application for a judgment for a subsequent installment of the same assessment on the same piece of property, where the finding of the court in the first proceeding was that the ordinance on which the assessment was based was invalid. In the light of a well settled rule this question must be answered in the affirmative. "Where the former adjudication is relied upon as an absolute bar, there must be, as between the two actions, identity of parties, of subject matter and cause of action. There is, however, a clearly defined distinction between that class of cases and where some controlling fact or matter material to the determi. nation of both causes has been adjudicated in a former proceeding in a court of competent jurisdiction, and the same fact or matter is again at issue between the same parties. In this latter case the adjudication of the fact or matter in the first suit will, if properly presented, be conclusive of the same question in the latter suit, irrespective of whether the cause of action is the same in both suits or not. This is generally denominated estoppel by verdict." Leopold v. City of Chicago, 150 Ill. 568; Wright v. Griffey, 147 id. 496; Hanna v. Read, 102 id. 596.

Admitting that the subject matter in the two applications is not the same, in one case it being the fourth installment and in the other the fifth, still, they are both parts of one assessment and based on one judgment of confirmation. However this may be, it is clear, upon the authorities cited, the court having held, upon the application for judgment on a former installment, that the ordinance on which the judgment of confirmation is based is void, it decided a material and essential fact to a recovery in this case. And as we said in Hanna v. Read, supra, (on p. 603): “Whether the adjudication relied on as an estoppel goes to a single question or all the questions involved in the cause, the fundamental principle upon which it is allowed in either case is, that justice and public policy alike demand that a matter, whether consisting of one or many questions, which has been solemnly adjudicated by a court of competent jurisdiction, shall be deemed finally and conclusively settled in any subsequent litigation between the same parties where the same question or questions arise, except where the litigation is a direct proceeding for the purpose of reversing or setting aside such adjudication."

We see no reason why the same question should be re-litigated each time an installment of an invalid special assessment falls due. The holding of the county court being to the contrary, its judgment must be reversed.

Reversed and remanded.

GEORGE K. MALTBY

2004 180 300 171 201 181 611

V.

ALBERTINE THEWS.

Opinion filed February 14, 1898.

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1. SPECIFIC PERFORMANCE_vendor seeking specific performance must show a clear right. A vendor who seeks to compel his vendee to specifically perform the contract of purchase and to accept a deed to the property must show a clear right to the relief prayed.

2. SAME-specific performance should not be decreed unless contract was fairly entered into. Specific performance should not be decreed unless the contract was fairly entered into, without misapprehension, misrepresentation or oppression.

3. SAME-to defeat specific performance evidence need not be sufficient to warrant cancellation. Evidence may be sufficient to defeat a bill for specific performance of a contract although not sufficient to authorize a decree canceling such contract.

Thews v. Maltby, 69 Ill. App. 30, affirmed.

WRIT OF ERROR to the Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. John GIBBONS, Judge, presiding.

W. B. MOAK, for plaintiff in error.

F. H. TRUDE, for defendant in error.

Mr. JUSTICE CARTER delivered the opinion of the court:

This was a bill for specific performance, filed by plaintiff in error, to compel defendant in error specifically to perform her contract with him to purchase a certain house and lot in Auburn Park. The contract provided that the vendor, Maltby, should put certain improvements in the house, and furnish a complete abstract of title or merchantable copy. brought down to date, and payment was to be made upon delivery of a good and sufficient warranty deed, and when title was found good or merchant. able the vendee was to pay $200 as earnest money, which was to be forfeited as liquidated damages, at the option of the vendor, if she failed to perform the contract on her part. The bill alleges that defendant in error gave her promissory note for the earnest money, and that both contract and note were deposited with a bank for the mutual benefit of both parties; that defendant in error entered into actual possession of the premises, and that plaintiff in error put in all of the improvements required by his contract, except the furnace, and that defendant in error removed from the premises after having occupied them about two weeks, and refused to receive the abstract or accept the warranty deed tendered to her, and refused to carry out her contract with him; that his title to the premises is a good and merchantable title, and that he is seized of said premises in fee simple; that he is willing, and offers specifically, to perform his part of the agreement.

Defendant in error answered the bill, denying that the title was good and merchantable and that plaintiff in error was seized in fee simple, and stating in extenso the circumstances attending the making of the contract; charged plaintiff in error with fraud in misrepresenting to her the cost of the house and the prices at which similar lots in the neighborhood had sold; stated that she placed entire confidence in and wholly relied upon him in the matter, and that as soon as she learned of the fraud that had been practiced upon her she moved out of the house and surrendered the key and possession to the vendor, who accepted the same and is now in possession.

The cause was referred to the master, who reported against granting the prayer of the bill. Exceptions to his report were sustained by the circuit court and a decree for specific performance entered. The Appellate Court reversed the decree and dismissed the bill at the costs of plaintiff in error without prejudice to any action at law he might choose to bring. Maltby then sued out this writ of error to reverse the judgment of the Appellate Court.

Whether or not the specific performance of a contract will be decreed rests in the sound legal discretion of the court, and it will not be decreed unless the agreement has been entered into with perfect fairness, and without misapprehension, misrepresentation or oppression, and evidence insufficient to authorize a decree canceling the contract may yet be sufficient to defeat a bill for its spe. cific performance. (Frisby v. Ballance, 4 Scam. 287; Doyle v. Teas, id. 202; Fish v. Leser, 69 Ill. 394; Race v. Weston, 86 id. 91; Ralls v. Ralls, 82 id. 243.) Thus it was said in Hatch v. Kizer, 140 Ill. 583: "To entitle a party to a decree for a performance of the agreement it must be reasonable, fair and equitable. If wanting in any of these particulars specific performance should never be granted, for it is only on the principle that it is unjust and inequitable to permit the contract to remain unexecuted that a court of chancery assumes jurisdiction to enforce it,”—citing Tamm y. Lavalle, 92 Ill. 263, and Woods v. Evans, 113 id, 186. Here, the vendor, instead of bringing an action at law upon the written contract, seeks to compel the vendee specifically to perform the contract, accept a deed and pay for the property. It is not denied that he may do this, but in so doing he must show that he is clearly entitled to such relief. We have carefully examined the evidence, which is too voluminous to be recited even in substance here, and are left in grave doubts in respect to the fairness of the vendor in his representations to the vendee concerning certain material facts which, it seems, induced the vendee to enter into the contract. The master found and reported that a preponderance of the evidence showed that in respect to such material facts, not necessary to be set out here, the vendor was guilty of misrepresentation to the rendee, and also that he did not sufficiently sustain his bill that he was seized in fee of the premises and had a good merchantable title thereto.

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