Appeal from the Circuit Court of Cook county; the Hon. THOMAS
KLUCZYNSKI, Judge, presiding. Reversed and remanded with
PRESIDING JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.
This is a complaint for real estate commissions alleged to have been earned for the sale of property owned by defendants. It involves the sufficiency of the pleadings and affidavits supporting the summary judgment. The appellants filed an amended answer wherein they set forth:
"11. . . . on the 5th day of July, 1956, defendants entered into a real estate contract for the sale of their property at 8010 South Rhodes Avenue, Chicago, Illinois, with a certain Mr. and Mrs. Charles Kimbrough, said contract contingent upon said Mr. and Mrs. Kimbrough obtaining financing within twenty-one (21) days from said contract date and, further, that plaintiffs and/or plaintiffs' agent had full knowledge of this outstanding contract and its terms.
"12. That plaintiffs, individually or by and through their agent, fraudulently represented unto defendants that they had personal knowledge of the inability of Mr. and Mrs. Kimbrough to obtain or secure the necessary financing needed in the aforementioned sales contract.
"13. That on the 22nd day of July, 1956, plaintiffs, or their agent, presented to defendants, a certain real estate contract representing the offer of a certain John McJimpsey and Helen D. McJimpsey to purchase defendants property, said contract being dated July 3, 1956 for Twenty Three Thousand ($23,000.00) dollars subject to the ability of the McJimpseys to secure financing within forty (40) days in the aggregate sum of Eighteen Thousand ($18,000.00) dollars.
"14. That defendants accepted and executed the McJimpsey contract as presented by plaintiffs, or their agent, only after plaintiffs, or their agent, fraudulently represented to defendants that they would hold the McJimpsey contract and earnest money as signed by defendants in abeyance until the expiration of the twenty-one (21) days to obtain financing in the Kimbrough contract had lapsed and that contract became null and void.
"15. That plaintiffs expressly agreed with defendants that in the event that the Kimbrough contract could be performed, that the McJimpsey contract would be waived, abandoned and rescinded and that the plaintiffs would return the earnest money deposit to the McJimpseys.
"16. That on, to-wit, the 24th day of July, 1956, defendants gave and plaintiffs received notice that the Kimbrough contract could and would be completed and it was further expressly agreed by and between defendants, plaintiffs and the McJimpseys that the McJimpsey contract be waived, abandoned and rescinded and same was done, as well as plaintiffs returning to McJimpseys their earnest money deposit.
"17. That plaintiffs [sic], at all times mentioned herein, were elderly and physically ill persons and completely inexperienced in business matters, and completely relied and believed in plaintiffs or plaintiffs' agents representations as heretofore set forth and plaintiffs or plaintiffs' agents were the sole scrivener and fraudulently induced defendants to accept and execute the McJimpsey contract."
Thereafter, on June 17, 1958, the court entered the following order:
"This matter coming on to be heard on Plaintiffs' Motion to Strike amended answer, defense and counter-claim to Plaintiffs' amended Complaint at Law, the Court, having heard the arguments of counsel and being fully advised in the premises:
"It is hereby ordered that Plaintiffs said Motion to Strike Amended Answer, Defense and Counter-claim be and it is hereby sustained except as to paragraphs 1, 2, 7, 8, and 13 of said Amended Answer; only as to said paragraphs 1, 2, 7, 8 and 13 is said Motion of Plaintiffs overruled.
"It is further ordered that Defendants be and they are hereby denied leave to file any amended defense and counter-claim.
"It is further ordered that Plaintiffs be and they are hereby given leave to reply to those portions of the Amended Answer not stricken ...