Chicago, Ill.: Blank assignment block 1 sent Mason on 18th. ROOSEVELT." But in consequence of the direction being to "Howard,' instead of "Edward" G. Smith, it was not received. On the 19th of September, 1890, Kendall being absent from Chicago, at Walnut, Ind., Smith mailed the following letter to him: "September 19th, 1890. To George W. Kendall, Esq., Walnut, Marshall county, Indiana: Small foreclosures are paid. Cash absolutely ready for block 1. Mason refused abstract to Handy. He acts queer generally. Can I get assignment, or must I prepare for formal redemption? When will you be here? Answer promptly, and oblige, EDWARD G. SMITH. This was received by Kendall about half past 11 on the following day, September 20, 1890, and on the same day Kendall mailed the following reply to this letter: "E. G. Smith, Adams Ex. Building, Chicago: Will be in Chicago Tuesday morning. Get ready to take certificate, and you shall have it. [Signed] G. W. KENDALLS"

once

We are clearly of the opinion that these several communications constituted a valid legal contract between the Equitable Insurance Company and Edward G. Smith. The request of Kendall to send the certificate to block 1, assigned in blank, to Mason Bros., with instructions to deliver to the party designated by Kendall on payment of amount due, and the compliance on the part of the company with that request, necessarily invested Kendall with full power to sell and transfer the certificate to whom he pleased, for the amount due upon the certificate. The Mason Bros. were to have no discretion in the matter. The right to designate the party to whom the certifi cate is to be delivered, subject only to the restriction that the delivery shall be upon payment of the amount due upon the certificate, necessarily implies the right to make the negotiations, without which no designation of the person could be made; and when that designation was made it vested a right in the person designated, and the company could not there. after withdraw the power under which Kendall had acted, or do any other act to impair that vested right. It is contended in argument that the power vested in Kendall could not be exercised without the concurrence of the Mason Bros. This is very clearly a misapprehension of the meaning of Kendall's request, and of the grant of that request by the company. The power of designation sought by him and granted by the company is to be exercised by him alone. What the Mason Bros. are to do involves neither judgment nor discretion, and is purely mechanical. It relates not to the making of a contract, but purely to the performance of a contract previously made; and as between the parties to the contract it adds nothing to the legal rights of the one, and detracts nothing from the legal rights of the other. If the delivery ought to be made, the trust company could not be heard in a court of equity to say that it was not made, for equity will treat that as done which ought to be done. The undertakings of the parties are mutual and con

current. In consideration that Smith undertakes to pay the trust company the amount which would be necessary to redeem from the sale, the trust company undertakes to transfer to him the certificate of sale; in other words, to allow him to redeem from the sale, notwithstanding the period within which he could legally redeem has passed. The extension of the period of redemption beyond that fixed by law may as well form the subject of a contract as any other property rights. The interest of the purchaser in the certificate is property, and he may, in the absence of fraud, dispose of it as he pleases. And the former owner of the equity may, therefore, purchase a right of redemption previously lost, as well as any other right or title to the property. The fact that the amount agreed to be paid is precisely the same that would have been paid had a legal redemption been made by a judgment creditor, affects merely the amount of the consideration, and not the fact of consideration; for any agreement to give a right where none before existed, or to extend or enlarge a previously existing right, in consideration of any sum to be paid therefor, is by all the authorities, in the absence of fraud, ample consideration to support a contract.

On the 20th of September, 1890, Kendall was empowered to make a contract for the sale of the certificate for the amount of redemption. At that time the company had made no effort to withdraw this power, nor to make any contract superseding its exercise. Smith's offer was before him. Kendall accepted it by saying, "Get ready to take the certificate, and you shall have it," as effectually as if A. were to say to B., "I will give you $100 for your horse," and B. were to reply,

Get ready to take him, and you shall have him.' What more could be said to bring the minds of the parties together? We can conceive of nothing. The mailing of Kendall's reply closed the contract then, and it is immaterial that the reply was not received by Smith until two or three days later. Haas v. Myers, 111 Ill. 421. But it is assumed Smith could not have then been sued upon the contract, had he refused to perform it; and it is argued that, since it was not binding upon Smith, it was not binding upon the trust company. But this assumption is wholly unwarranted. Although, until acceptance, Smith's proposal in his declarations and letters was a mere offer, the moment that offer was accepted he became bound to carry it out, and he would have been held liable in an action at law for a refusal. Chit. Cont. (11th Amer. Ed.) p. 17, and notes. See, also, Id., and notes, p. 12. Bish. Cont. (1st Ed.) § 177 et seq.

But it is further insisted in argument that, conceding there was a contract, the evidence fails to show that Smith was able and ready to perform it. We have carefully considered the evidence on this point, and, without deeming it necessary to recite it and comment upon it at large, we think it proves that Smith was able and ready to perform his part of the contract. It is true that to enable himself to do so he had to make contracts with

other parties, selling or mortgaging to them the rights he was to derive under this contract, but that concerned no one but him and those parties. It could not possibly concern the trust company what uses he should make of the property, nor what profits he or others should make out of it, by contracts of sale or otherwise, so long as that company should get what it was entitled to have under its contract.

Again, it is contended that Smith practiced a fraud upon the trust company by persuading Kendall to withhold from the company knowledge which he would otherwise have communicated to the company of the value of the property. We think it very clear from the evidence that the value of the property in no degree affected the company in making this contract.

While it is true that Smith had no legal right to redeem after the expiration of 12 months from the day of sale, it is equally true that the trust company could have no title in the property until it should receive a deed for it, which could not be sooner than 15 months from the day of sale. After the expiration of 12 months, and before the expiration of 15 months, the property was liable to be redeemed by Smith's creditors, (of whom he had many;) and the greater the value of the property, the more certainly it would be redeemed by some of those creditors. It could make no possible difference to the trust company whether the redemption within the period should be made by one person rather than by another, since the effect of any redemption would be to ter. minate the rights of the company by the payment of the same sum of money. And hence, in contracting to give Smith a right that might otherwise be enjoyed by one of his creditors to his exclusion, for the amount necessary to redeem from the sale, the company would get all it could get from the creditor, whatever might be the actual value of the property. Although Smith had no legal right himself to redeem through one of his creditors, he had the clear and undoubted right to do all he could to cause his creditors to redeem, for thereby he would cause the property to pay that much more of his indebtedness; and whatever rights he might acquire by contract from his creditors, after or in view of a valid redemption, could by no possibility concern any one but the parties contracting. The evidence proves that the company believed that the property would be redeemed within the 15 months, and that it was willing that Smith should have the benefit of the redemption; indeed, that it preferred that he should have it. There is no pretense that there was any concealment in this respect. As early as February or March, 1890, Smith informed the officers of the company that he expected to redeem; and, instead of discouraging him, they told him that when he got to the point that he had the money, to see Mr. Kendall; thus making Kendall their agent for negotiations in that respect. Kendall knew that Smith expected to redeem the property, and knew he expected to get the money, for Smith kept him fully informed in that re

spect, and Kendall encouraged him in his efforts. Kendall informed the company that the property would be redeemed, and there is not the slightest pretense that he acted in bad faith in that respect, or that Smith acted in bad faith in assuring him that the property would be redeemed. And we think it quite clear from the evidence, as a matter of fact, though not indispensable to a decision of the matter before us, that, had the company refused to sell the certificate to Smith, the property would have been redeemed by one of his creditors. We cannot presume that, had the company known that the property was of far greater value than it was supposed by its officers to be, it would have been less willing that Smith should purchase the certificate rather than that his creditors should redeem from the sale.

The next question to be considered is, what right did Chytraus acquire in the property by virtue of his contract with Mason Bros., and their delivery to him of the certificate of sale, accompanied by a separate paper, purporting to be an as-. signment of it in blank. Mason Bros. were simply the solicitors of the trust company in the foreclosure proceedings, and had no general authority to negotiate sale of the certificates of purchase. The only authority which it is claimed they had from the trust company to negotiate sale of the certificate in controversy was this: Mason Bros. sent the following letter to the trust company: "Chicago, Illinois, September 20th, 1890. To Roosevelt and Son, 33 Wall Street, N. Y.: Letter and foreclosure certificate received. Our last directions from Kendall were to sell to the first party who would pay cash. Shall we still do so? Kendali is out of town, and we don't know his present address, or time of return. MASON BROS." To this the following reply was made by telegram on the date therein given: "September 22d, 1890. Mason Bros., Chicago, Ill.: Sell certificate to first man who will pay for it in full. W. EMLEN ROOSEVELT, Secretary." It will be remembered that the contract between Smith and the company was closed on the 20th of September, 1890, and it can need no argument to demonstrate that the company could not, two days thereafter, invest Mason Bros. or any one else with authority to make any contract inconsistent with the contract with Smith. The certificate of purchase was not assigned to Chytraus. It was simply accompanied by a blank assignment of the trust company. This did not invest the legal title to the certificate in Chytraus, for the statute only gives the "person to whom the same shall be so assigned "-i. e., by indorsement on the certificate-"the same benefits therefrom" as the assignor would otherwise have had. Rev. St. 1874, c. 77, tit. "Judgments,"§ 29. And in no view could it have done more than put Chytraus in the place of the trust company as respects rights by virtue of the certificate; and so, whatever equitable defense could have been interposed against it could have been interposed against him. Roberts v. Clelland, 82 Ill. 538; Olds v. Cummings, 31 Ill. 188. Whatever equity

Chytraus acquired in the property by vir. tue of his contract with Mason Bros. was subsequent in point of time to that acquired in the property by Smith by virtue of his contract with the company, and therefore Smith's equity, being the oldest, must prevail. Schultze v. Houfes, 96 II. 340. The purchaser of a mere equitable estate is not embraced within the defini tion of a bona fide purchaser. 16 Amer. & Eng. Enc. Law, p. 833, and cases cited. Smith was in the actual possession of the property when Chytraus purchased, and Chytraus was bound to know upon what equities his right to possession rested. Haworth v Taylor, 108 Ill. 275. Upon a full and careful consideration of the case in every view of which it is susceptible we are unable to discover such error in the decree below as requires that we should reverse it. The decree is therefore affirmed.

WILLIAMS V. VANDERBILT.1 (Supreme Court of Illinois. March 24, 1892.)

ESTOPPEL-EVIDENCE-LIEN.

A mechanic, who had done work on leased premises under a contract with the lessee, sought to enforce a lien on the premises after the lease had been forfeited, on the theory that the lessor, by inducing him to complete the work, was estopped to deny his lien. He and another witness swore that they understood that, if he completed the work, the lessor would, after forfeiting the existing lease, give him a new lease of the premises, but neither of them stated any facts on which such understanding was founded. The lessor's agent, by whom the representations were said to have been made, denied having said or done anything to induce the mechanic to complete the work. Held, that the evidence did not prove an estoppel. 40 Ill. App. 298, affirmed.

Appeal from appellate court, first district.

Bill by Charles B. Williams against William K. Vanderbilt to enforce an equitable lien. Complainant obtained a decree, which was reversed by the appellate court. Complainant appeals. Affirmed.

Oliver & Showalter, for appellant. Robert Mather, (Wm. Elmore Foster, of counsel,) for appellee.

SCHOLFIELD, J. Appellee leased certain real estate, and the lessees made a contract with appellant to make repairs and improvements upon it. After much of the work of making the repairs and improve. ments had been done, but before it was completed, appellee terminated the lease, by virtue of a clause therein, for the nonpayment of rent, and repossessed himself of the property. Appellant completed the work of making the repairs and improvements after the lease was thus terminated by appellee. The lessees paid appellant nothing for his work or materials in making the repairs and improvements, and they are pecuniarily irresponsible. The only question presented for our consideration by the arguments before us is, was appellant induced by the representations of appellee, after he had concluded to terminate the lease for the non-pay

Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

ment of rent, and before he had done so, to complete the repairs and improvements on the leased property that he had contracted with the lessees to make? Appellee acted, in making the lease and in terminating it, through Pliny B. Smith, and the representations which appellant contends induced him to complete the repairs and improvements are claimed to have been made through him. The rule is of familiar application in this court that representations depended upon to prove an estoppel must be of such a character as to leave no doubt that the party claimed to have been estopped intended to assume a position inconsistent with his right to make the claim sought to be barred, (Cook v. Hunt, 24 Ill. 535;) and the burden was upon appellant to prove the ground of relief alleged in his bill. Smith's testimony is positive that he said and did nothing to induce appellant to complete the performance of his contract with the lessees. Appellant testifies to his understanding, and he is corroborated by the testimony of another witness of like understanding, that, if he would go on and complete the performance of his contract with the lessees, appellee would, after terminating the lease then existing, let him have a new lease of the property upon the same terms upon which those lessees had it. But neither of them states any facts from which he should have had such an understanding, and appellant admits that Smith said that he would make no promise what he would do until after he should have terminated the lease. is impossible for us to say that a man of ordinary intelligence and prudence would have relied on any representation or all the representations disclosed by this record for a new lease of this property to be made after the termination of the existing lease. If appellant, knowing the situation, took the chances of the future as respects the new lease into his own hands, uninfluenced by anything done or said by Smith which would bave induced the reliance of a man of ordinary intelligence and prudence, he is not entitled to relief. It may be admitted that, situated as appellant was, he was justified in believing that it was probable that he would get the new lease, but that was not sufficient. The facts should have been such that a man of ordinary intelligence and prudence would have confidently relied upon them. The proof fails to show that Smith permitted appellant to do anything knowing that he was relying on his promise or representation in regard to the lease. We concur in the conclusion of the appellate court in regard to the effect of the evidence, and the judgment of that court is therefore affirmed.

It

(140 III. 525)

LAKE SHORE & M. S. RY. Co. v. HUNDT.2 (Supreme Court of Illinois. March 24, 1892. ) INJURIES TO SERVANT-PLEADING-NEGLIGENCE—

VARIANCE-INSTRUCTIONS.

1. In an action by a laborer against the railroad company employing him, the declaration

2 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.