APPEAL from the Circuit Court of Cook County; the Hon. E.J.
SCHNACKENBERG, Judge, presiding.
MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:
This is an appeal from a decree of the circuit court of Cook County, reforming a contract to purchase real estate, on the recommendations of a master in chancery, between Anton Jamnik, the defendant-appellant, and L.D. Schmalzer, plaintiff-appellee. The decree further provided that the plaintiff have a credit on the contract of purchase in the amount of $9683 and a further credit equal to the difference between certain rents collected between July 1, 1946, to and including December 1, 1949, less all disbursements.
It appears from the record that the appellant and the appellee entered into a contract whereby the appellant agreed to sell, and appellee agreed to purchase, property known as 1638-44 West Seventy-ninth Street in Chicago, for $105,000, subject to a mortgage of $38,000, taxes, special assessments, and existing leases with specified rentals for stores on the property.
The complaint charged that subsequent to the above agreement and the payment of $5,000 earnest money in April, 1946, the Cross Town Liquor Mart, Inc., which was made a party defendant to the cause in the lower court and whose lease expired in 1946, and the appellant, entered into a new lease dated back to November 1, 1945, for an additional five years at a lower rental, when the premises were properly worth a higher rental.
The written contract between the parties, reads as follows:
"This Memorandum Witnesseth, That L.D. Schmalzer hereby agrees to purchase at the price of One Hundred Five Thousand and no/100 ($105,000.00) Dollars, the following described real estate, situated in the County of Cook and State of Illinois:
The 3 story brick building consisting of 20 apartments and 4 stores commonly known as 1638-44 West 79th Street, together with all appurtenances attached to the property including 20 electric refrigerators and 20 gas stoves and stoker.
Right to insert legal description later.
Section Township North, Range East of the
Third Principal Meridian, and
agree to sell said premises at said price, and to convey to said purchaser a good and merchantable title thereto, by stamped general Warranty Deed, with release of dower and Homestead rights, but subject to: (1) existing leases, expiring 3 stores @ $337.50 per mo., exp. 10/31/46; I store $115.00 per mo. 10/31/49 total rentals $15,090.00 per yr., the purchaser to be entitled to the rents from date of closing deal; (2) all taxes and assessments levied after the year 1945; not yet completed and to unpaid installments of special assessments which fall due after date of closing deal levied for improvements completed; also subject to any party wall agreements of record; to building line restrictions and building restrictions of record, and to prorate general taxes, water taxes, rents, insurance, coal, janitor salary and electric bill, also interest on 1st mortgage as of date of closing deal. Property is also subject to 1st mortgage with an unpaid balance of $38,000 payable in monthly installments which include interest at 4 1/2%; payments amount to $325.13 per month, plus taxes."
In accord with the findings of the master, the court ordered the above contract of sale, dated April 4, 1946, to be corrected and reformed to supply the legal description of the real estate as follows:
"Lots 3, 4, 5 and 6 in the re-subdivision of Lots 1 to 49 in Block Sixty-three (63) in Dewey and Vance Subdivision in the South one-half (1/2), Section Thirty (30), Township Thirty-eight (38) North, Range Fourteen (14), East of the Third Principal Meridian in Cook County, Illinois. Improved with a 3 story brick building consisting of 20 apartments and 4 stores commonly known as 1638-44 West 79th Street, together with ...