dissenting:
I dissent.
By ignoring the effect of the Hales’ two tenders and the finding in the original forcible entry and detainer action that the Hales were not in default, the majority unnecessarily prolongs this cycle of litigation and prevents its decision here, Hale III, from being Hale the Last.
This court determined in Hale II that the trial court’s order in that first forcible entry and detainer action brought by the Hales against the Aults is immune from collateral attack and therefore remains the law of the case. In that order the trial judge found the sole question to be whether the Hales had been properly notified of the default and impending forfeiture for missing a payment. Although specifying that time was of the essence, the land sale contract did not state the method for giving notice of forfeiture. The trial court ruled that the notice of default and the forfeiture were ineffective. The Hales had not been given the 30 days to pay the balance due promised by the Aults in their notice of default. Thus, the Hales were not in default, yet the majority fails to give this res judicata effect. The court also ruled that the Hales rather than the Aults had the right to possess the farm.
The Hales are entitled to specific performance; the trial court finding of March 11, 1974, shows that they were not in default, and Hale I and Hale II have set this result in cement. In April and December 1974, the Hales tendered the full contract price plus accrued interest. Regardless of whether installment or lump sum payment was required, the tenders were adequate. Because the tenders were made before an effective declaration of forfeiture, we should grant the Hales specific performance of the contract. (Kelly v. Germania Savings & Loan Association (1963), 28 Ill. 2d 591, 192 N.E.2d 813.) The Hales’ two tenders — both refused by the Aults — sufficiently show that they were ready, willing, and able at all times to perform their part of the contract. (Wolford v. James E. Kolls Investment Co. (1978), 61 Ill. App. 3d 405, 377 N.E.2d 1314.) Refusal of a proper tender excuses further tenders. (Lang v. Parks (1960), 19 Ill. 2d 223, 166 N.E.2d 10; McGrath v. Davis (1966), 75 Ill. App. 2d 19, 221 N.E.2d 54.) Because Supreme Court Rule 366(a) (73 Ill. 2d R. 366(a)) authorizes this court to enter any orders necessary to dispose of the case and resolve the conflict, I would order the issuance of a decree of specific performance conveying the farm by warranty deed from the Aults to the Hales. I would remand this case only for an accounting of the rents and profits owing the Hales by reason of the Aults’ possession of the property.
A review of this record and the admitted long history of this litigation can only lead to the conclusion that ultimately the Hales will be entitled to specific performance and the parties must have an accounting. Indeed, the majority opinion here practically concedes as much. This litigation, like all litigation, should terminate sometime, and we need remand only for a limited accounting purpose.