delivered the opinion of the court:
The theory upon which appellee seeks to recover payments made under these contracts is, that there was, in effect, a rescission of the contracts by the conduct of the parties. Appellee insists that appellant had waived his right to cjeclare a forfeiture of the contracts because payments were not promptly made. The facts relied upon to establish such waiver consist of numerous letters written by appellant’s agent (Collins) to appellee requesting and urging payments long after appellee had made her last payment and after all of the installments under the contract were due, and the acceptance by appellant of installments, on numerous occasions, long after the right to declare a forfeiture for their non-payment had accrued. It cannot be denied that the correspondence and conduct of Collins in regard to these contracts furnish satisfactory evidence of an intention to waive the forfeiture clause in the agreements. This conclusion is not seriously controverted by appellant. Appellant seeks to avoid the effect of the waiver by insisting here that there is no sufficient evidence of the authority of Collins to waive a clause in the written contract. This contention raises a mixed question of law and fact, and involves a consideration of the evidentiary facts as well as the ultimate deductions therefrom, hence falls within the class of questions the determination of which by the Appellate Court is final. (Moerschbaecher v. Royal League, 188 Ill. 9; Ætna, Life Ins. Co. v. Sanford, 200 id. 126.) Such has been the uniform construction of section 90 of the old Practice act in numerous analogous cases. Sun Mutual Ins. Co. v. Saginaw Barrel Co. 114 Ill. 99; American Exchange Nat. Bank v. Chicago Nat. Bank, 131 id. 547; Hamburg-American Packet Co. v. Gattman, 127 id. 598; Alphin v. Working, 132 id. 484; Phœnix Ins. Co. v. Johnston, 143 id. 106; Coverdale v. Royal Arcanum, 199 id. 649.
The question of the extent of Collins’ authority, as well -as the question whether there was a waiver, is settled adversely to appellant by the affirmance of the judgment by-the Appellate Court. The only questions that are open for our consideration upon this record relate to the rulings of the court upon certain propositions of law.
At the request of appellee the court held the following propositions of law applicable to the decision of the case:
“That if, while tlfe contracts introduced in evidence were still in force, the defendant conveyed the real estate mentioned therein to a third party, such conveyance, if assented to by the vendee, plaintiff herein, effected a rescission of said contracts, and such rescission would be by mutual consent, and entitle the vendee, plaintiff aforesaid, to a return of the purchase money paid under said contracts.
“That if there was a rescission of the contracts introduced in evidence, as set forth in proposition 5, the plaintiff is entitled to recover of the defendant the total amount paid by her thereon, together with interest thereon at the rate of five per cent per annum from the date of said rescission.”
Appellant assigns error upon the ruling of the court in its. holding upon these propositions. These propositions state the law correctly as laid down by this court in Bannister v. Read, 1 Gilm. 92, Boston v. Clifford, 68 Ill. 67, and Lake Shore and Michigan Southern Railway Co. v. Richards, 152 id. 59. In the Read case, above cited, this court, on page 99, said: “Although one party to a contract may not, alone, rescind it, he may, nevertheless, by neglecting or refusing to perform it on his part, place it in the power of the other party, where he is not also derelict, to avoid it, or not, at his pleasure. The breach of one party may in such case be treated by the other as an abandonment of the contract, authorizing him, if he choose to do so, to disaffirm it, and thus the assent of both parties to the rescission of the contract is sufficiently manifested, that of the one by his neglect or refusal to perform his part of the contract, and of the other by his suing, not for such breach, but for the value of any act done or payment made by him under the contract, as if it had never existed,”—citing "cases. The above language was quoted and approved in the case of Boston v. Clifford, supra.
Appellant complains that the court refused to hold propositions 15, 17, 19 and 20 submitted by appellant. In the main these propositions relate to the right of a vendor to declare a forfeiture of a contract to sell real estate and retain all payments made thereon in cases where no question of waiver or estoppel is involved. Assuming that the evidence before the trial court established a waiver on the part of appellant, the propositions submitted, in so far as they declare the law applicable to a case where the question of waiver was not involved, were properly refused. The only other matter included in the refused propositions is contained in the nineteenth, which relates to the right of the vendor to declare a forfeiture without notice. This proposition is not applicable to the case in hand, for the reason already given that it entirely fails to take into account the effect of a waiver upon the rights of the parties. If appellant, by his course of dealing with appellee, had led her to believe that a forfeiture would not be insisted upon, it would be manifestly inequitable, as well as in violation of the legal rights of appellee, after years of repose and confidence, to suddenly reverse his course of dealing and declare a forfeiture without giving appellee notice and an opportunity to pay the small balance due appellant, and thus protect herself from serious loss which would otherwise follow from appellant’s unexpected change of attitude. There was no error in refusing this proposition of law. Monson v. Bragdon, 159 Ill. 61; Eaton v. Schneider, 185 id. 508.
The last proposition of law to which appellant excepts may be disposed of by simply referring to the fact that there was no evidence in the record upon which such proposition could be predicated. This proposition relates to the right of the vendee to call upon the vendor for a deed without actual payment of all the purchase money. The contract being in force and executory at the timé appellant conveyed the property to a third party, thereby violating his contract and putting it out of his power to convey to appellee, no question can arise with respect to the right of appellee to demand a deed. The demand for and the refusal to deliver the deed were not a condition precedent to appellee’s right to recover payments made, on the theory of a rescission of the contract.
There was no error in the rulings of the court upon the. propositions of law-submitted.
The judgment of the Appellate Court for the First District is affirmed. T , , ,
T , , Judgment affirmed.
Mr. Justice Carter took no part in the decision of this case.