We

with his wife in 1902, and with her called upon Mr. Galt, who had had charge of the property for many years. They learned from him the location of the various parcels of the property and saw them, but did not discuss with him the question of value. The value of all the lots, as shown by the evidence, was $19,000. The appellant knew that this was practically Mr. Galt's estimate of the value of the property, and that Emmett Brooks was not acquainted with its value. On February 28, 1904, without any previous negotiations, conversation, or correspondence, Emmett Brooks wrote to the appellant the following letter: "Iago, Tex., 2-28th, 1904. Dear Sam: I am going to dispose of my undivided interest in the Chicago lots. I would rather you or Gertie would buy than some outside party. If you would like to buy, will give you a bargain. Will take $1,000. are having. fine weather; are about half through planting corn. Taylor has corn up. Clifton is at Batson oil fields with his teams, getting $5.00 per day for teams and drivers. I have gained ten pounds since you left, but took so much calomel my feet and hands are swollen and sore. My voice is about the same as when you were here. Father's health is very good. Thinks he will go home some time next month. Much love to you both. Emmett. (over) I will take $500 down and balance next November." Appellant replied as follows: "Muskogee, Indian Territory, March 2nd, 1904. Dear Emmett: Yours of the 28th ult. to hand and hasten to reply, because I presume you want an early answer, so I concluded to accept your proposition and mail you check for $500 and on receipt of reply will send you paper for $500 that can be discounted, in case you need the money before Nov., '04. the time you mention. While I feel that you are making a sacrifice, I am free to say that this property has been a detriment, and if the average man had owned it he would have sold at any price long ago. Gertie says I never think of birthday presents, so will try and surprise her this year. As I understand your proposition you sell undivided one-third interest in five lots in Chicago, now owned by Coco, Gertrude and yourself? Our trade is fair, weather fine, looks like early spring. Glad to know father is well. Gertie worries about him and is afraid he will come before spring is here. She has had grippe for two weeks, is better now. I did not tell her of your letter to-day, will to-morrow. Love to all. Cumb." Το this letter the following response was received: "Iago, Tex., Mar. 5th, 1904. Dear Sam: Yours of the 2nd to hand, with check. If you know the number of each lot and number of block send to me. If not, send me Galt's initials and number and I can get same from him. Then I will make out deed and forward to you. With love to both. Emmett. P. S.-There is seven lots." The contract sought to be enforced is contained in these three letters, if any contract was made.

Subsequently Emmett Brooks wrote to appellant that because of his father's objections he preferred to return appellant the money, with interest, and on May 14, 1904. he conveyed the premises for $1,000 to his father, who had notice of appellant's rights. After a hearing on the pleadings and evidence, the court dismissed the bill for want of equity, and the complainant has appealed.

Schmitt & Wise, for appellant. George P. Merrick and Arthur T. Galt, for appellees.

en

DUNN, J. (after stating the facts as above). It is claimed by appellees, and the superior court held, that the correspondence between Emmett Brooks and appellant did not so certainly and definitely describe the subjectmatter of the contract as to enable the court specifically to enforce it, for the reason that it is left uncertain whether five lots or sevwere bargained for, and that extrinsic evidence is not admissible upon that question. It is true that a written contract must speak for itself as to the terms, conditions, and limitations of the agreement, but as to the parties and subject-matter of a contract extrinsic evidence is always competent, if necessary for their identification. "A deed or other written contract is not void for uncertainty in the description of the land sold or conveyed, if from the words employed the description can be made certain by extrinsic evidence of facts. physical conditions, measurements, or monuments referred to in the deed." Hayes v. O'Brien, 149 Ill. 403, 37 N. E. 73, 23 L. R. A. 555. "Any description adopted in a deed by which the premises intended to be conveyed may be established and identified is sufficient; and it is the settled doctrine, for the purpose of sustaining a grant, extrinsic evidence may always be used to identify and establish the objects of the call in the deed. A devise or grant will only be declared void for uncertainty, where, after resort to oral proof, it still remains a matter of mere conjecture what was intended by the instrument." Colcord v. Alexander, 67 Ill. 581. Extrinsic evidence was therefore admissible in this caseindeed necessary-to identify the subjectmatter of the contract. It was mentioned in the first letter as "my undivided interest in the Chicago lots." These words indicate lots in Chicago in which the writer owned an undivided interest. The evidence introduced shows that the five lots mentioned in the amended bill answer this description, and no other lots do. This letter appellant answered, "I concluded to accept your proposition,” and inclosed the cash payment demanded. is difficult to see what more was required to complete the contract. A plain proposition to sell the writer's interest in the premises mentioned in the amended bill for $1,000– $500 cash and balance in November following was unconditionally accepted and the cash payment made. It is true that the vendee in his letter referred to the lots with an

It

added element of particularity. Whether his reference was an interrogation or an assertion, it corresponded with the fact, and the mailing of the letter completed the contract. The third letter did not affect the contract already made.

Even if the third letter is considered, it does not change the case. A false description has no effect in defeating a contract if the error can be shown and corrected by other matter in the instrument. 2 Parsons on Contracts, 550. If the repugnancy of the parts is such as to render the intention of the parties unintelligible, this defeats the contract, but, if there is enough of the consistent and intelligible parts of the instrument to give effect to the intention of the parties, the courts will regard such intention. Where there are two descriptions in an instrument, one of which describes the subject-matter with reasonable certainty, and the other, giving some additional particular, is incorrect, the incorrect particular or circumstance of description will be rejected as surplusage. Myers v. Ladd, 26 Ill. 415; Allen v. Bowen, 105 Ill. 361; Huffman v. Young, 170 III. 290, 49 N. E. 570. The court by the parol evidence adduced is enabled to place itself in the position of the parties. There is no conjecture as to what the parties intended. The subject-matter of their negotiation was Emmett Brooks' undivided one-third interest in the Chicago lots, of which his sisters owned the other two-thirds. Whether the different tracts were divided into five or seven lots was an immaterial circumstance. The evidence shows that the same thing was in the minds of both parties-the undivided interest in all this property, and nothing else and the agreement they made was binding on both, whether there were five lots or seven. The description in a devise, "my house and lot in Patoka," is sufficient. Allen v. Bowen, supra. The description of the premises in a conveyance as "the following lots, tracts or parcels of land lying and being in the county of St. Clair and state of Illinois, being lots in" certain blocks, carries all the lots in the blocks. Bowman v. Wettig, 39 Ill. 416. This court, by the aid of competent evidence, found in the words, "the north half of the southeast quarter of section 27," a legal description of the east half of the southeast quarter of section 27. Felkel v. O'Brien, 231 III. 329, 83 N. E. 170. There is no difficulty, by the aid of competent evidence in this case, in finding the lots in Chicago in which Emmett Brooks owned an undivided interest. While no state, county, town, range, section, monument, or measurement is referred to and the size of the lots is not given, it is definitely stated that they are the lots in Chicago which Emmett Brooks owned jointly with his two sisters, and the evidence shows that he never owned any interest in any lots in Chicago except those described in the bill. When the ownership of these lots is proved,

the identity of the subject-matter of the contract is established.

It is said that the three letters show a patent ambiguity, and that no extrinsic evidence can be received to disclose the real situation. The admissibility of parol proof does not depend in this case upon the distinction between patent and latent ambiguities. Such evidence does not contradict or vary the terms of the writing. It is received merely for the purpose of identifying the subjectmatter to which those terms apply, and is always admissible for such purpose. Bulkley v. Devine, 127 Ill. 406, 20 N. E. 16, 3 L. R. A. 330; Marske v. Willard, 169 Ill. 276, 48 N. E. 290.

Ordi

It is insisted that the vendor was justified in repudiating his contract on account of the gross inadequacy of the consideration. It is true that specific performance is not a matter of absolute right, but this is no case for the application of that doctrine. Where there are circumstances of oppression. unfairness, or advantage taken, a court of equity will not specifically enforce an unconscionable bargain. But the object of courts of equity, as well as courts of law, is the enforcement of contracts understandingly entered into, rather than their evasion. narily the specific performance of a contract to convey land is as much a matter of course as an action of damages for its breach. There is no charge or evidence of fraud in the case. The parties were competent to contract, and did fairly contract, with each other, and neither side ought to be relieved from the agreement on the ground that good business judgment was not used in entering into the contract. In this case the vendor makes no complaint of the inadequacy of consideration, and can make none. After having sought the vendee unsolicited, made a contract upon his own terms, and received half the purchase price, he repudiated the contract, not because of any unfairness or inadequacy of consideration, but at the request of a third party, to whom he at once conveyed the property for the same consideration for which he had sold it to the first vendee. He testifies that he has no interest in the property. circumstances are shown which make it inequitable that this contract, fairly made, should not be enforced, particularly when the relief would be denied to complainant, not for the benefit of the vendor, but in order to give the benefit of the alleged unconscionable bargain to a third person to whom the vendor has conveyed the property for the same inadequate consideration. A decree dismissing the bill would simply take from the complainant the benefit of his contract, and give it to another who officiously interfered and induced the vendor to repudiate his agreement.

No

It is urged that there is a variance between the allegations of the bill and the proof, in that appellant's letter of March 2d differs

from the exhibit attached to the bill. No objection was made to this letter when it was offered in evidence, and the objection of a variance cannot now be entertained. Had such objection been urged, it could readily have been obviated by an amendment of the bill. The decree was on the merits, and it cannot be sustained in this court on the ground of a variance in the proofs which was not suggested in the court below. Driver v. Ford, 90 Ill. 595; Grundeis v. Hartwell, 90 III. 324. The vendor having repudiated the contract and put it out of his power to comply with its terms by his conveyance to a third party, no tender by complainant was necessary before filing his bill. Lyman v. Gedney, 114 Ill. 388, 29 N. E. 282, 55 Am. Rep. 871; Boston v. Nichols, 47 Ill. 353.

The decree will be reversed, and the cause remanded to the superior court of Cook county, with directions to enter a decree in conformity with the prayer of the bill.

Reversed and remanded, with directions.

A customer of a telephone company cannot recover excessive charges for services voluntarily paid without fraud, mistake of fact, or other ground for annulling the contract.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Payment, §§ 253-266.]

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; Jesse Holdom, Judge.

Action by the Illinois Glass Company against the Chicago Telephone Company to recover amounts paid for telephone service in excess of legal rates. A judgment for defendant was affirmed by the Appellate Court, and plaintiff appeals. Affirmed.

Mayer, Meyer & Austrian, for appellant. Holt, Wheeler & Sidley (John J. Herrick, of counsel), for appellee.

CARTWRIGHT, C. J. On January 4, 1889, an ordinance of the city of Chicago was passed authorizing the appellee, the Chicago Telephone Company, to construct, maintain, and operate its lines of telephone wires in said city for 20 years. It was required to file with its acceptance of the ordinance a schedule showing the rates then charged for telephone service, and was prohibited from increasing to its existing or future subscribers the rates so established. The appellee accepted the ordinance and filed its schedule of rates showing that it charged $125 per year for a business telephone within the territory where the office of the appellant, the Illinois Glass Company, was located. Appellant contracted

with appellee for a business telephone at that rate and used it for many years, up to October 11, 1897. The telephone so contracted for was known as the "grounded line," and was the kind in use when the ordinance was passed. With the increase of wires and disturbing influences the telephone grew less efficient, and did not give satisfactory service by reason of humming, spluttering, and hissing noises, which made it difficult to carry on a conversation. An improved service, known as the "metallic circuit," was devised, which obviated the objection to the grounded line, and, when the credit man of appellant complained to appellee of the service, he was told that, if appellant would procure the improved telephone equipment, it would have better service, and that such improved telephone would cost $50 a year additional, or $175 a year. The credit man said that the price was high, but was informed that the service would be better, and he consulted with a general officer of appellant about the advisability of making the contract. He was authorized to do so, and on October 11, 1897, a contract was executed by which appellant was to pay $175 a year, quarterly in advance. The improved telephone was installed in the office of appellant, and appellee rendered bills quarterly in advance for the service, which were paid for the ensuing five years. The amount so paid was $209.97 in excess of the rate fixed by the ordinance, and on July 17, 1903, appellant brought this suit in the superior court of Cook county against appellee to recover that amount. The declaration was in the common counts, to which the defendant pleaded the general issue and the five-year statute of limitations. There was a trial by jury, and at the conclusion of the plaintiff's evidence the court, on motion of the defendant, directed a verdict in defendant's favor. A verdict was returned under that direction, and the plaintiff's motion for a new trial was overruled and judgment was entered against it for costs. The Branch Appellate Court for the First District affirmed the judgment on appeal and granted a certificate of importance, under which this further appeal was prosecuted.

All the evidence in the case was introduced by the plaintiff, and it was thereby proved that the contract was entered into by it deliberately, after negotiations and with full knowledge of all the facts and conditions; that it was performed by the defendant aecording to its terms; and that the payments made under it, quarterly, for the period of five years, were made without any objection or protest or manifestation of unwillingness to pay the amount agreed to be paid. In order to be relieved from its contract and to recover back a portion of the moneys paid, the plaintiff assumed the burden of establishing, by the evidence, facts from which the law would draw the conclusion that the defend

ant had received money which in justice belonged to the plaintiff and ought to be return. ed. There was neither fraud, misrepresentation, nor mistake of fact, and it is not claimed that the payments were made upon a consideration which subsequently failed, but it is insisted that the fact of overpayment alone was sufficient to sustain the action. The fact of overpayment was established, and is not disputed. The defendant was bound to furnish any improved service or equipment adopted by it to its customers within the territory where the plaintiff's office was located at the rate of $125 a year. People v. Chicago Telephone Co., 220 Ill. 238, 77 N. E. 245. Counsel do not seriously contend that the mere fact of overpayment would authorize a recovery as between private individuals or between individuals and municipal corporations or public officials collecting taxes or generally in other relations, but the burden of their argument is that a distinction has been observed by other courts, and should be observed by this court, where the payment is made to a corporation rendering public service, such as a railroad or telephone corporation. Such a distinction has never been made in any case in this court, and the real question here is whether such a distinction ought to be recognized and a recovery be permitted merely because of a payment in excess of that which defendant had a legal right to demand.

It has been a universally recognized rule that money voluntarily paid under a claim of right to the payment and with knowledge of the facts by the person making the payment cannot be recovered back on the ground that the claim was illegal. It has been deemed necessary not only to show that the claim asserted was unlawful, but also that the payment was not voluntary, that there was some necessity which amounted to compulsion, and payment was made under the influence of such compulsion. The ancient doctrine of duress of person, and later of goods, has been much relaxed, and extended so as to admit of compulsion of business and circumstances, and perhaps a telephone corporation having a system in general operation and connected with customers and other business houses might reasonably influence a business house to make an unwilling payment of an amount illegally demanded, which would make the payment compulsory. The telephone has become an instrument of such necessity in business houses that a denial of its advantages would amount to a destruction of the business. In the case of County of La Salle v. Simmons, 5 Gilman, 513, a payment made for business reasons was declared by the court to be, in law and fact, a compulsory payment. The county commissioners had power to grant ferry licenses and to require payment therefor not exceeding $100. They gave notice that they would grant a certain ferry license to the person who would donate the largest amount to the county, and the plain

tiff, who had previously kept the ferry, offered $500, which was accepted. It was held that he was compelled, by the force of circumstances over which he had no control, to advance a large sum of money to protect his business, and that he could recover it back. In this case there was undoubted inequality of situation between the parties, but there was no evidence tending to show that the plaintiff was in any manner overcome by any necessity amounting to compulsion. The proposition for an improved service at an increased price was presented and accepted without objection, and there was entire acquiescence on the part of the plaintiff for a term of years thereafter.

From the nature of the question no very precise rules can be laid down as to what will constitute a compulsory payment, but the general principles are illustrated by a number of cases. The principles were applied in two cases between the city of Chicago and owners of property who had paid illegal special assessments. In Bradford v. City of Chicago, 25 Ill. 411, it was held that a property owner could recover an assessment for the purpose of opening a street where the assessment was void and payment was made to a collector who had a warrant in his hands: authorizing him to levy upon and sell the goods and chattels of the property owner. On the other hand, in Elston v. City of Chicago, 40 Ill. 514, 89 Am. Dec. 361, where the assessment was void, but the payment was made when there was no precept or execution in the hands of an officer by which the collection of the assessment could be enforced, it was held that the payment was not compulsory. The doctrine of that case, which is adhered to by practically all courts, is that a payment made with full knowledge of all the facts and circumstances and in ig norance only of legal rights cannot be re covered back. In order to render a payment compulsory, such a pressure must be brought to bear upon the person paying as to interfere with the free enjoyment of hisrights of person or property, and the compulsion must furnish the motive for the payment sought to be avoided. Proof that one party is under no legal obligation to pay the money and that the other has no right to receive it is of no consequence unless the payment was compulsory, in the sense of depriving the one making the payment of the exercise of his free will. The rules were applied as between shipper and common carrier in the case of Chicago & Alton Railroad Co. v. Chicago, Vermilion & Wilmington Coal Co., 79 Ill. 121, where the coal company had noother outlet for its coal, and the court said it was a case of life or death with the coal company, and it was bound to accede to any terms the railroad company might impose. In that case there was a controlling necessity arising from the circumstances under which the money was demanded and paid, and it was held that the shipper could recover from

the railroad company the excess of freight over that which it was entitled to exact. There was no hint that there is any peculiar rule or test as between a public service corporation and one for whom the service is rendered. In Pemberton v. Williams, 87 Ill. 15, the assignee of a purchaser of land who had contracted to sell the land to another was compelled to pay the original vendor more than was due, in order to get a deed to satisfy his vendee, and made the payment under protest. That was a case of business necessity, and it was held to be a fair question for the jury whether the payment was not involuntary and made under a sort of moral duress. In Gannaway v. Barricklow, 203 Ill. 410, 67 N. E. 825, an administrator paid money falsely represented to be for back taxes of his intestate, and it was contended that the tax was voluntarily paid. The court said that a tax voluntarily paid, where there was no mistake of fact, could not be recovered back, but that the payment was made in that case on account of fraud and imposition, where no tax was ever levied or extended, and was not voluntary. In City of Chicago v. Northwestern Mutual Life Ins. Co., 218 Ill. 40, 75 N. E. 803, 1 L. R. A (N. S.) 770, an owner of property was adjudged to have rightfully recovered from the city of Chicago water rates unlawfully exacted and paid under protest to prevent the city from carrying out a threat to shut off the water supply. The payment was deemed compulsory. In Yates v. Royal Ins. Co., 200 Ill. 202, 65 N. E. 726, it was held that, although a statute imposing a tax was unconstitutional and the tax illegal, it could not be recovered back if it was paid voluntarily. It was considered of no importance that the tax was illegal where it was paid under a mistake as to legal rights but with knowledge of all the facts. Those cases clearly show the rules of law respecting voluntary and compulsory payments and their application to different conditions. They were applied to a common carrier, and to the city occupying the same position as a public service corporation in supplying water to the inhabitants of the city-a public service performed by the city in the exercise of a private, and not a governmental, function. Wagner v. City of Rock Island, 146 Ill. 139, 34 N. E. 545, 21 L. R. A. 519. It was not thought that a mere overpayment to a railroad company carrying coal nor to the city for supplying water would authorize a recovery, but it was assumed that there must be an added element of compulsion.

Much effort is made to show that the rule forbidding a recovery of illegal taxes voluntarily paid rests upon peculiar grounds distinguishing cases of that kind from this one, but, if that were so, it would be of no avail, since the rule is not confined to tax cases. However we are not able to see any valid ground for declaring one rule in tax cases and a different rule in other cases. Counsel

say that tax cases are distinguished by the facts that taxes are essential to the existence of the government; that the taxpayer necessarily derives some benefit from the tax that he has paid; that the collector of the tax acts as an agent of the government, and, if the tax is recovered back, the public funds are diminished. These propositions are all true, but we do not see how they affect the question. The government must be supplied with revenue, but that fact affords no justification for injury to a citizen or unjust or illegal exactions. The plaintiff derived some benefit from the money whch it paid to the defendant-in fact, all the benefit which was expected or that the contract provided for— and we do not see that it makes any dif ference whether money is received by an agent for his principal or by the principal himself. If a tax is recovered back, the public funds are diminished; but we do not see any ground for saying that the law would make the recovery of money voluntarily paid to a tax official impossible and at the same time make a recovery easy and certain if the money voluntarily paid was for telephone service. Not only has no distinction of that kind been made by this court, but we do not find among the cases cited by counsel any which contain no element of compulsion. The circumstances of different cases are so diverse and the nature of the question is such that, as before stated, no very precise rules can be laid down which will fit every case. Ordinarily protest is the best evidence of→ compulsion or unwillingness to pay, and it is usually expected where the payment is made to one who has a right to make terms with the payor, but, where protest would be useless, it is superfluous. Examples are to be found in cases cited by counsel where a railroad company fixes its own rates and goods are tendered to an agent who has no authority to make any change in such rates and where a protest would be entirely useless. Compulsion may appear from the circumstances and not from any expression of unwillingness or protest against a payment; but that has no effect on the rule that a payment which is voluntary, and not compulsory. cannot be recovered back. Plaintiff was chargeable with knowledge that the defendant could not string its wires in the streets of the city and carry on its business without a license or grant from the city, which must be by ordinance, and the license was given by ordinance, upon terms and conditions for its enjoyment, and the ordinance is a local law of the city. Although the defendant could not legally require payment of more than $125 per year for the business telephone, and the plaintiff was not legally bound to pay more, a larger sum was voluntarily paid without fraud, mistake of fact, or other ground for annulling the contract. The court did not err in directing a verdict.

Complaint is made of rulings of the court on the admission of evidence, but, as there