The first issue concerns who bears the burden of proving that plaintiffs paid the taxes voluntarily or involuntarily. The circuit court did not certify this issue for review (107 Ill.2d R. 308(a)) and the appellate court did not address this issue, so it is not properly before us and we decline to consider it (see Christopher v. West (1951), 409 Ill. 131, 134-35). We are only concerned in the case at bar with the sufficiency of the pleading.

As indicated above, the contract in the instant case differs from that in Swearingen in that, in the instant case, payment of the entire purchase price was the precondition to the transfer of deed. The rule governing our disposition of this issue was announced by our supreme court in Christopher v. West (1951), 409 Ill. 131, 98 N.E.2d 722. "[H]e who desires to rescind the contract need only show nonperformance or inability to perform by the other.

This cause was passed upon by this court at the October Term, 1949, and from the decision of this court, Edith Christopher, as executrix of the last will and testament of Samuel S. Christopher, deceased, appealed to the Supreme Court. The Supreme Court reversed the decision of this court and remanded the cause to this court with instructions to consider and pass on the assigned errors remaining undetermined. ( Christopher v. West, 409 Ill. 131.) The cause therefore comes back to this court for decision on those matters not passed upon by the Supreme Court. The contract upon which the action is based was executed by the parties on February 22, 1946, in Ford county, where the real estate in question was sold at public auction, the material parts of the contract being as follows:

Inability to perform is sufficient excuse on the part of the purchaser for not tendering performance, for, in this event, a tender would be devoid of meaning." ( Christopher v. West (1951), 409 Ill. 131, 136, 98 N.E.2d 722.) Where the plaintiffs had the express obligation under the contract to deliver evidence of merchantable title and a spotted survey prior to closing, we can find no precedent which would impose an obligation upon defendants to initiate a "demand" for performance of these express conditions or to require them to tender the purchase money when confronted with the plaintiffs' prior breach of the contract. Under the circumstances present here, defendants did nothing to mislead the plaintiffs, and the plaintiffs' failure to comply with the express terms of the agreement constituted a material breach of the contract.

(See Annot., 84 A.L.R.2d 12 (1962).) Where impossibility of performance is asserted, any further conduct on part of prospective buyer would be excused. If the buyer need not tender performance, then it would seem that further performance under a related option agreement is likewise unnecessary, particularly where the object of the option contract is the sale of real estate. (See Christopher v. West, 409 Ill. 131, 98 N.E.2d 722.) The floodplain easement is not the usual encumbrance in the ordinary sense because of the nature of the problems it presents. If the easement renders title unmerchantable and the defect cannot be cured, then the easement will constitute a valid defense to the option contract.

Thus it must be determined whether the premises were "materially damaged by fire or other casualty." Defendant relies upon Christopher v. West, 409 Ill. 131, 137, 98 N.E.2d 722, 725, in which the Illinois Supreme Court stated: "If any claimed defect was such as to affect the merchantability of the title and one which was not cured or curable within a reasonable time as provided in the contract, no tender of the full purchase price was necessary.

No date is given for furnishing an abstract. [9, 10] Christopher v. West, 409 Ill. 131 on 136, 98 N.E.2d 722, holds that one who seeks performance of a contract must show that he has performed every act on his part to perform, while one who seeks to rescind a contract need only show nonperformance or inability to perform by the other. [11] Coney v. Rockford Life Ins. Co., 67 Ill. App.2d 395, 214 N.E.2d 1, holds that where one party understood an agreement in a particular sense and the other party knew it to be so understood, the contract will be so construed if it is compatible with the language used.

For Balagiannis to prevail in his breach of contract suit against Mavrakis he had only to show that he had substantially performed his end of the bargain. George F. Mueller & Sons, Inc. v. Northern Illinois Gas Co., 32 Ill.App.3d 249, 336 N.E.2d 185, 189 (1975), citing Christopher v. West, 409 Ill. 131, 98 N.E.2d 722, 725 (1951); W.W. Vincent & Co. v. First Colony Life Ins. Co., 351 Ill.App.3d 752, 286 Ill.Dec. 734, 814 N.E.2d 960, 967 (2004). The district judge nevertheless dismissed Balagiannis's suit with prejudice for failure to state a claim, primarily on the ground that the second letter had come too late, having been filed with the court more than four months after the complaint had been filed.

Baird shows that the failure of one party to a contract to perform may excuse nonperformance by the other, e.g., Contract Development Corp v. Beck, 627 N.E.2d 760, 765 (Ill.App. 1994); Wilmette Partners v. Hamel, 594 N.E.2d 1177, 1186-87 (Ill.App. 1992), but that is just the familiar doctrine of contract conditions and is a far cry from the flat rule here asserted that you cannot (if the paying party) sue for breach until you've paid up. In every case cited by Orkin, the plaintiff's failure to perform was found to be an excusing condition, and no such finding has been made here. Christopher v. West, 98 N.E.2d 722, 725 (Ill. 1951); George F. Mueller Sons, Inc. v. Northern Illinois Gas Co., 336 N.E.2d 185, 189 (Ill.App. 1975); F.E. Holmes Son Construction Co. v. Gualdoni Electric Service, Inc., 435 N.E.2d 724, 727 (Ill.App. 1982). A better ground for rejecting Normand's claim would have been that she failed to pay the annual inspection fee, a condition precedent to the renewal of the contract.

Under Illinois law, a plaintiff must perform his own obligations to sustain a claim for breach of contract. See Teague, 2019 WL 3973372, at *6 (citing Christopher v. West, 409 Ill. 131, 136, 98 N.E.2d 722, 725 (Ill. 1951)). a. Section 12