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Young v. Wilkinson

MAY 18, 1959.




Appeal from the Superior Court of Cook county; the Hon. JOHN A. SBARBARO, Judge, presiding. Affirmed in part and reversed in part; and cause remanded with directions.


Rehearing denied June 12, 1959.

The plaintiffs appeal from an order dismissing their amended complaint which combined a plea for specific performance of a contract with a count in the nature of a creditor's bill.

The contract provided for the defendant to purchase lots in which the plaintiffs had leasehold interests. The lots were grouped in parcels designated as 1, 2 and 3. The original complaint alleged that the defendant repudiated the contract a few days before December 1, 1957, the date it was to become effective, and that the plaintiffs were ready and willing to comply with its terms; they tendered performance of all the provisions binding upon them.

The defendant moved to dismiss on several grounds, among them that the plaintiffs had failed to allege that they had procured the consent of the lessor of parcel 3 to their assignment of that leasehold, that the plaintiffs, therefore, were unable to comply with one of their obligations and were not entitled to specific performance. The court sustained the motion upon this point and the order of dismissal was entered on February 28, 1958. Thereupon, on that same day, the plaintiffs secured the written consent of the lessor. It was attached as an exhibit to the amended complaint.

The defendant again moved to dismiss on the same ground, alleging that the exhibit showed that the lessor's consent was not obtained until February 28, 1958, which proved that the plaintiffs were not ready to comply with the terms of the contract on December 1, 1957. The motion was sustained. The defendant on appeal has advanced other objections to the amended complaint which we will not consider; they were not included in his motion, and, in fact, were denied upon his previous motion to dismiss the first complaint.

The controversy centers around the following portion of the contract, particularly 2(c):

"1. The buyer agrees to buy at the price of $60,000.00 the leaseholds herein referred to as parcels 1, 2 and 3, and the seller agrees to sell said leaseholds at said price and to assign or cause to be assigned to the buyer, or his nominee, good title to all of the rights, title and interest of the seller to said leaseholds by good and sufficient instruments of assignment.

"2. Said assignments shall be subject to

(a) All of the terms and condition of `Agreement for Sale of Leasehold' between Avery Building Corporation and Laktop Corporation hereinbefore referred to under Parcel 1.

(b) Existing leases, if any, of the stores included under Parcel 1.

(c) Consent of Isadore Goldstein, lessor, to assignment of lease identified as Parcel 3.

(d) All unpaid general taxes, special assessments, water taxes and all restrictions of record."

The four subsections (a), (b), (c) and (d) are governed by the preceding words: "shall be subject to." The plaintiffs' position is that the defendant was accepting the assignments subject to or limited by the subsections; that there is nothing in the contract which said that Goldstein's consent had to be procured as a condition precedent and that there was nothing which said the plaintiffs were obligated to procure it.

The defendant's position is that although the words subject to may mean subordinate to when applied to (a), (b) and (d), they mean conditioned upon when used in association with (c); that is, that the plaintiffs' assignment of parcel 3 was conditioned upon securing the consent of Goldstein, and since the plaintiffs had to assign their leasehold it was their responsibility to secure the consent. The defendant bolsters his interpretation of the contract by stating that it was prepared by the plaintiffs' counsel and should be construed most strictly against the plaintiffs; that the court should look to all the facts surrounding the execution of the contract and place itself in the position of the contracting parties so that it might better understand the intent of the language used. However, there is little in the amended complaint which discloses the position of the parties; there is less which reveals the circumstances surrounding the execution of the agreement and there is nothing which tells who drafted it. Under the motion to dismiss we can only consider the facts which were well pleaded in the amended complaint.

[3-6] The only reference in the contract to the consent of Goldstein is in 2(c). There it is listed among the things to which the assignments are subject. One of the definitions of subject to is subordinate or inferior to; this is the customary meaning of the phrase when it is used in association with deeds, mortgages, leases and taxes. 40 W. & P.; Harley v. Magnolia Petroleum Co., 378 Ill. 19; Englestein v. Mintz, 345 Ill. 48; Black's Law Dictionary, 1951. In the context in ...

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