Weiss v. Clamitz , 203 Ill. App. 246 ( 1917 )

Mr. Justice Gtoodwih

delivered the opinion of the court.

Abstract of the Decision. 1. Vendor and purchaser, § 81^*—what does not constitute waiver of condition in contract.' Where a contract for the sale of land provides that the land shall he subject to a specified incumbrance, an agreement to change the terms of the contract so as to permit an incumbrance materially different from the one originally provided for does not constitute a waiver of the condition. 2. Evidence, § 322^*—when parol evidence inadmissible to vary terms of contract. Where a contract for the sale of real property provides that the land shall he subject to a specified incumbrance, payable at specified periods, evidence that an agreement to change the terms of the contract so as to permit an incumbrance materially different from the one originally provided for is inadmissible as an attempt to vary the terms of a written document by parol evidence. 3. Vendor and purchaser, § 325^*—when purchaser is entitled to repayment of earnest money. Where a contract for the sale of real estate provides that the land shall he subject to a specified incumbrance payable at specified periods, and the vendor is unable to furnish a conveyance subject only to such incumbrance within the time stipulated by the contract, the purchaser is not in default- and is entitled to recover earnest money deposited under the contract, 4. Appeal and error, § 1810^*—when final judgment will be entered in Appellate Court upon reversal. Where, in an action by the purchaser of real estate against a vendor to recover earnest money paid under the contract, there is no dispute in regard to the amount, the Appellate Court upon reversing a judgment for defendant will enter final judgment for the amount claimed.