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Greenberg v. Waukegan-caldwell Corp.

OPINION FILED MARCH 22, 1963.

IRVING M. GREENBERG, APPELLANT,

v.

WAUKEGAN-CALDWELL BUILDING CORPORATION ET AL., APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS E. KLUCZYNSKI, Judge, presiding.

MR. CHIEF JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 29, 1963.

Plaintiff, Irving M. Greenberg, instituted a suit for specific performance of a written contract to sell real property against the vendor, defendant Waukegan-Caldwell Building Corporation. Upon motion of defendant the circuit court dismissed the complaint for want of equity. Plaintiff has appealed directly to this court on the ground that a freehold is involved. Schiro v. Gould & Co. 18 Ill.2d 538.

It appears from the pleadings that plaintiff and defendant entered into a contract for the sale of certain real estate for a price of $1,850,000 on December 13, 1961. The principal provisions of the contract were contained in a so-called "rider" attached to and incorporated in the contract. The rider provided in part as follows:

"3. It is understood and agreed that the improvements on the subject property will be used for the operation of a general hospital by the buyer. Seller warrants and represents that the cost of remodeling the existing structure to make it suitable for the operation of a general hospital, in accordance with the plans and specifications attached hereto, made a part hereof and by express reference incorporated herein, will not exceed the sum of $100,000.00, and seller agrees and undertakes at the election of buyer to do the aforesaid remodeling at actual cost plus ten (10%) per cent, but in no event at a cost to buyer in excess of $100,000. If buyer shall revise said plans and specifications, then at the option of buyer, seller will do the remodeling in accordance with the said revised plans and specifications at actual cost plus ten (10%) percent, not limited, however, to $100,000.00. The contract for such remodeling shall be with Trans-American Construction Co. at 5232 North Sheridan Road, Chicago, Illinois, and the cost of such remodeling shall be in addition to the purchase price.

"5. It is further agreed and understood that this sale is conditioned upon Buyer obtaining within seventy-five (75) days hereof the necessary variations or permits under the zoning laws, in order to permit the completion of a general hospital, and is further conditioned upon the issuance of the necessary use permits for the operation of the premises as a general hospital, except that seller is not required to warrant that buyer has the proper qualifications to operate a general hospital, and this sale shall not fail if the use permit aforesaid is withheld because of the lack of such qualification. All costs and expenses in connection with procuring the zoning variations or use permits shall be borne by the seller, but buyer shall make the applications therefor. Buyer shall not obligate seller for any costs and expenses without the approval of Curtis, Friedman & Marks, attorneys for seller.

"6. The following chronology shall be pursued after the execution of this contract:

a) Seller shall secure the necessary amendments to the existing commitments for the first mortgage loan or secure other financing as provided in paragraph 2 hereof.

b) Buyer shall make application to the Village of Morton Grove for the necessary zoning variations and use permits for a general hospital.

c) Buyer shall submit the necessary plans and specifications to the Department of Public Health of the State of Illinois for its approval and for the issuance of a building permit.

d) Buyer shall secure a building permit from the Village of Morton Grove for remodeling the present improvements for use as a general hospital.

e) This contract shall in all respects be fully consummated.

f) Buyer at its option shall engage Trans-American Construction Co., to do the necessary remodeling as provided in paragraph 3 hereof."

Thereafter the parties agreed to extend the contract to May 1, 1962. They provided for the deposit of the earnest money on May 1 in the event a valid zoning ordinance had then been passed. The agreement further provided that all periods of time referred to in the original contract be measured from May 1, 1962. The ...


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