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A.p. Freund Sons v. Vaupell

SEPTEMBER 16, 1964.

A.P. FREUND SONS, ET AL., PLAINTIFFS-APPELLANTS,

v.

HAROLD H. VAUPELL, ET AL., DEFENDANT.



Appeal from the Circuit Court of McHenry County; the Hon. PHILIP W. YAGER, Judge, presiding. Judgment affirmed.

SCHEINEMAN, J.

Rehearing denied November 18, 1964.

This case has been in this court twice before, the first time the appeal was dismissed for lack of a final appealable order. On the second appeal the court reviewed a final order dismissing the suit, and an abstract of the opinion under the same title as the present appeal is reported in 30 Ill. App.2d 271.

The court there held that there existed a covenant between plaintiffs and the defendant, Holiday Hills, Inc., which was construed to be a covenant not to sue the said corporation, and that it had been acted upon by payments of funds by said corporation. It was held binding on plaintiffs, but the covenant was not a bar to a suit against other defendants. Therefore, the dismissal of the suit was affirmed as to Holiday Hills, Inc. and reversed as to other defendants. The prior decision is binding not only on the parties to that suit but upon the courts in further proceedings in the same litigation. Morris v. Broadview, Inc., 338 Ill. App. 99, 86 N.E.2d 863; Morganroth v. Pink, 227 Ill. App. 244.

The argument of plaintiffs on this point is that the prior decision is not final and binding, because it did not comply with Section 50 of the Practice Act, Subsection 2, in that it failed to find no just reason to delay enforcement or appeal. That section is regulatory of procedure in the trial court and has nothing to do with procedure in a court of review. The prior decision is final and binding as to Holiday Hills, Inc.

The present appeal is from a final judgment which dismissed the suit as to all parties pursuant to motion attacking the 4th amended complaint. The court found the 4th amended complaint failed to state a cause of action, and because of repeated pleadings of similar issues, denied leave to amend the complaint again.

Since the trial court was bound by the decision on the prior appeal in this court, the denial of leave to file an amended complaint as to Holiday Hills, Inc. is clearly right, and we, therefore, consider only the situation of other defendants.

Involved in this litigation was a proposal to subdivide and improve a large tract of farm land into a subdivision of residential lots. Exhibit A to the complaint is the first contract which was entered into between the owners of the land and Homer Fitzgerald, whereby the latter undertook to develop and subdivide the land and pay for it in installments as the lots were sold.

Under Paragraph 16 of that exhibit Fitzgerald was authorized to assign the agreement to a corporation to be organized by him, and thereupon he would be relieved of personal liability.

The plaintiffs are contractors who do road work, excavating, grading, and other types of construction work. Fitzgerald entered into a contract with plaintiffs (Exhibit C of plaintiffs' complaint). This contract recognized and affirmed the right of Fitzgerald to assign the contract (designated Exhibit A) to a corporation, and upon such assignment and assumption of liability, Fitzgerald was to be relieved of any personal liability under the contract. It is undisputed that this was done. It, therefore, becomes clear that Fitzgerald, one of the defendants, is not subject to litigation against him personally as to any alleged liability under Exhibit A.

Also in the contract, referred to as Exhibit C, first party (plaintiffs) "agrees to, and does hereby, waive any and all right which it may have to claim a lien for work to be performed or material to be furnished hereunder against all or any part of the real estate upon which said work is to be performed or material furnished, and upon request of second party, first party agrees to furnish waivers from any subcontractors of first party."

Since the original suit was filed, additional defendants have been added and apparently others dropped, so that it is difficult to determine the status of the large number of defendants. There appear to be financial institutions who probably have financed the purchase of lots in the subdivision. There are also names of construction firms, and of individuals who appear to be the present owners of lots.

It appears from the pleadings that the only defendant under contract to pay plaintiffs is Holiday Hills, Inc., which is no longer a party to the suit. As to all other defendants, none is shown to have any personal obligation by contract to pay plaintiffs anything. As previously noted, the liability of Fitzgerald ceased upon his assignment to Holiday Hills, Inc. As to all other defendants, none is shown to have any contractual liability to plaintiffs.

Sales by Fitzgerald and his successor were made pursuant to the contract with plaintiffs, in which they waived their claim for a lien. There is nothing ambiguous in the waiver, therefore, they cannot ...


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