dissenting:
I concur with the majority of the court as to what is said in the foregoing opinion as to the stock in Shinkle’s Loan Association and the Horseman note, but do not concur in the opinion or judgment as to the two notes, aggregating $6619.20, which, with the contract, were left with P. Y. Hamilton. The notes and the contract set forth in this opinion of the court were made at the same time the deed was executed, and the notes, contract and deed constituted one entire transaction. The execution of the will was not a necessary part of the deed, notes or contract. The construction of the latter as an entire transaction in no manner depended on the will, which was controlled by Joseph Jennings alone.
The testimony of Hamilton in reference to the notes and this contract was: “I drew the notes, and they were left with me in my possession. I drew thqm for both of them—for Mr. Joseph Jennings and Wilford Jennings. * * * They both signed the contract and notes and both said I should keep the notes and contract in escrow, and they were put in my vault, and have been there ever since until I brought them over here this morning.” He was asked, “Who owned that land, as you understand?” and answered: “Joseph Jenning-s. He said he intended to make him a deed for some time. He came up one day and asked me to write to Wilford to come in,—that he wanted to fix up that land business,—and I wrote to Wilford and he came in and was present there. He said, T want to give Wilford this land, except he must pay these two sisters out of it, ’ and I asked him if he was to take a mortgage for the balance of the purchase money. He said, no; that when Wilford paid these two girls, or their children, as specified in the contract and in the will, the amounts named in them, then he is to have the balance of it. * * * I did the writing for both the contract and the notes. Mr. Wilford Jennings signed both the contract and the notes and Mr. Jennings signed the contract, and I wrote the deed and delivered the deed to Mr. Wilford Jenningá and he took it over to have it recorded. Then I drew this statement in escrow, put it in an envelope and sealed it up in the presence of both of them.”
Under the citation Wilford Jennings was required to answer on oath. His testimony in substance was: “It was understood for a good while that father was to sell me this eighty acres of land before my mother died. We talked some about it,—that he wanted his daughters to have so much and I was to have this eighty acres, and by paying him this much he would give me a deed.” He was asked, “How came you to give your father these two notes, one for $3310 and the other for $3309.20?” and answered: “This included that transaction for that eighty acres spoken of this morning. I did swear that the contract price for that land was $3200, and I paid $1000 on that, as I stated this morning. I agreed that if he deeded me this eig'hty acres of land I would pay it. When this escrow agreement was originally drawn it provided for $2000 for the children of Lucinda Janes. It now calls for $1000, After I sent the $1000 to my sister Mr. Hamilton was notified of that fact, and he made the change from $2000 to $1000. I do not know who was present when that change was made. I suppose father was.”
Prom this evidence it is apparent that these notes were placed in escrow, and by the contract, which must be construed in connection with the notes, the intention of the parties must be determined and construed. A court cannot take these notes out of escrow and make a new and different contract for these parties other than that which was made by them. It is said in Daniell on Negotiable Instruments, (vol. 1, sec. 68): “A bill or note, as well as a deed, may be delivered as an escrow,—that is, delivered to a third party to hold until a certain event happens or certain conditions are complied with. * * * And it matters not that the actual delivery is not to take place until after the death of the promisor.”
In Fort v. Richey, 128 Ill. 502, a contract was made by which a father deeded to his son certain lands for the express consideration of $5000. A written contract was subsequently entered into, by which the manner and amount of payment was changed. In that case it was held (p. 507): “It cannot be doubted that the contract and deed are parts of the same transaction and that they should therefore be construed together. True, they bear different dates, the deed being dated July 30 and the contract Aug'ust 5; but both relate to the same subject matter and are based upon the same consideration, the contract being given in consideration of §2500 of the purchase money named in the deed. The deed, by expressing a consideration of §5000, did not necessarily import that that sum was to be paid by the vendee to the vendor in any event, so as to create an indebtedness existing independently of their cotemporaneous agreement fixing the mode of payment and determining the amount which should be ultimately paid. It was competent for the parties, notwithstanding the recital in the deed, to ágree upon a different consideration or to agree that the consideration recited should be payable only conditionally, and as they have entered into such contract and reduced it to writing the same conclusive presumptions arise as in other cases, that all the terms of their contract are embodied in the writing.”
In Spear v. Griffith, 86 Ill. 552, a father deeded land to his son, which, in part, was to be paid for by the payment of a certain amount by the grantee to two other brothers, and the residue of the price was to belong to the grantee. The consideration exceeded the amount to be paid to the two brothers. It was held he took as purchaser, and the contract limited the amount to be paid.
In the contract enclosed in the envelope with the notes reference is made to bequests made by Joseph Jennings in his last will and testament. No will seems to have been found, but the contract refers to its provisions, as follows: “Upon the death of said Joseph Jennings the said Wilford M. Jennings shall pay the bequests made by the said Joseph Jennings by his last will and testament, as follows, viz.: To EmelineLaRue, or her children in case of her death, the sum of §1200, as specified in said will, and to the children of Lucinda Janes living on the 6th day of December, 1890, the sum of §1000, as specified in said will, and when all of said payments shall have been made by said Wilford M. Jennings then the notes herein described shall be canceled and delivered up to the said Wilford M. Jennings as fully paid and discharged.” By this provision of the contract, which was made at the same time as the notes, and which had reference to the purchase price mentioned in the deed, the amount of the consideration in the deed was changed and a stipulation made by the contract which must be construed with the notes, which stipulation provided for the notes to be entirely satisfied by the payment of a less sum than therein mentioned. The parties had a right to so contract and so provide for the satisfaction of the notes by the payment of a lesser sum than that mentioned in them, and such contract between the parties so contracting is valid and binding. The fact of the destruction of the will in no manner renders the contract ambiguous, because the recitation in the contract of the bequests made is explicit and clear.
The consideration mentioned in the deed as expressed by the notes is qualified by the contract, which provided that both the consideration mentioned in the deed and the amount of the notes could be liquidated by the payment of the amount expressed in the contract. It was within the power of the parties to so contract, and having so contracted it is not the province of the court to make a contract for them or change the terms of the one made, where it is clear and explicit.
The facts of the case are still open for discussion and 'adjudication by this court. This proceeding partakes of the elements of chancery jurisdiction that require this court, on appeal, to consider the questions brought up on this character of record. Martin v. Martin, 170 Ill. 18.
The finding of the circuit court that the payment as provided for in the contract was for the satisfaction of the two notes, which payment is shown by the evidence, in my opinion was correct, under the evidence in this case, hence I am unable to concur in that part of the opinion or judgment.