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Perino v. Protect-all-shelters

SEPTEMBER 11, 1970.

ANTHONY PERINO AND MARQUETTE NATIONAL BANK, AS TRUSTEE UNDER TRUST NO. 2400, PLAINTIFFS-APPELLEES,

v.

PROTECT-ALL-SHELTERS, INC., AN ILLINOIS CORPORATION, PAUL B. STADTLER, M.N. VERNON, AND GEORGE M. NOVAK, DEFENDANTS, GEORGE M. NOVAK, APPELLANT.



Appeal from the Circuit Court of Will County; the Hon. MICHAEL A. ORENIC, Judge, presiding. Reversed and remanded with directions.

ALLOY, J.

Plaintiffs Anthony Perino and Marquette National Bank, as Trustee under a certain trust, initiated an action for specific performance as a seller under a contract for sale of real estate. The original contract was entered into between Perino, as seller, and Protect-All-Shelters, Inc., an Illinois corporation, on June 6, 1963. Legal title to the land was in the name of Marquette National Bank as Trustee under a land trust for the sole benefit of Anthony Perino. The agreement covered 38.74 acres of land in Will County for an agreed sale price of $83,800. It was contemplated by the purchaser that it would subdivide the land into Spencer Highlands Subdivision Unit No. 2. Purchaser was to pay $1,000 on the $83,800 purchase price for each lot selected for the first 83 lots and $800 per lot for the balance selected. The purchaser was to select only lots fronting on Ricky Drive and, thereafter, on the street immediately east and parallel to Ricky Drive. The agreement also provided that the purchaser was to pay a total of $25,000 on or before December 1, 1963, $10,000 on or before January 15, 1964, and $15,000 on or before April 15, 1964, and the entire balance on or before December 31, 1965. In addition to other standard provisions, in Paragraph VI it was specifically provided that in the event the purchaser shall not pay $25,000 of the purchase price on or before December 1, 1963, or in the event the entire purchase price shall not have been paid on or before December 31, 1965, then upon twenty (20) days' prior notice to the purchaser advising it of its default or defaults hereunder, and providing further that the same are not cured within said period of time, the agreement and all rights and interest of the purchaser therein would be forfeited and terminated and any and all moneys paid by the purchaser shall be forfeited and retained by the seller in full satisfaction and liquidation of all damages sustained by the seller. It was further provided that all titles to real estate previously obtained by the purchaser would be retained by it, its nominee or designee and the parties thereafter would be "fully and completely relieved of any and all obligations" under the terms of the contract. The original contract was signed by Anthony Perino as sole beneficiary under the land trust as seller and Protect-All-Shelters, Inc., by Paul Stadtler as president and attested by M.N. Vernon as secretary. Marquette National Bank also signed agreeing to be bound by the terms of the contract.

On the trial of the cause it was shown that Protect-All-Shelters, Inc. was not able to obtain approval of the subdivision plat of the property being purchased and as a result, the corporation was in serious financial difficulty, which finally resulted in the corporation being involuntarily dissolved. It was clear at this time that defendant-purchaser would not be able to pay the required $25,000 due by December 1, 1963. As a result, Mr. Perino, Mr. Vernon and Mr. Stadtler met at Marquette Bank on December 6, 1963, to work out an amendment of the June 6, 1963, agreement. The amendment provided that it was an amendment to the original agreement. The amendment recited, in lieu of the $25,000 due on or before December 1, 1963, that $10,000 was to be paid on or before January 15, 1964, and $15,000 on or before April 15, 1964. There was also a change in the area where lots could be selected which permitted the buyers a larger selection. The forfeiture provision in Item VI was amended to show the change from $25,000 due on or before December 1, 1963, to the payments due in January and April, 1964, referred to. The amendment was signed by Perino as seller and by Paul B. Stadtler as president and M.N. Vernon as secretary respectively of Protect-All-Shelters, Inc., a corporation. The amendment was also signed by Paul B. Stadtler, M.N. Vernon and George M. Novak over signature lines noted below with the designation "individually."

There was evidence at the trial of the action that Perino would not agree to the extension unless Stadtler, Vernon and Novak agreed to be personally responsible under the agreement. The names of Stadtler, Vernon and Novak which were signed to the amendment do not appear in the body of the amendment.

On January 16, 1964, M.N. Vernon, Inc., gave the trustee Marquette Bank a check for $5,000 as payment for conveyance of five lots. The trustee cashed the check and Mr. Vernon took the deed to the lots. He kept this deed until June 1964 but did not record it. In June 1964, he returned the deed to the five lots to the trustee and it is still held by the trustee and has never been recorded. There was evidence that this deed was given to Vernon to be used for the purpose of negotiating for purchase of a six-inch strip of ground which was needed to allow lots to be laid out in the proposed subdivision.

On April 27, 1964, the trust officer of Marquette National Bank wrote Protect-All-Shelters, Inc. c/o Novak and Novak in Chicago, a letter as follows:

"MARQUETTE NATIONAL BANK

"63rd and Western Avenue Chicago 36 Illinois

"GRovehill 6-5100

"April 27, 1964

"Protect-All-Shelters, Inc., "c/o Novak and Novak, Attorney at Law, "77 West Washington Street, "Chicago, Illinois

"Re: Our Land Trust #2400 "Protect-All-Shelters, Inc. — "purchaser, "Anthony Perino — seller

"Gentlemen:

"Pursuant to the terms of Agreement dated June 6, 1963, as amended December 6, 1963, between the above parties, there was due to be paid on or before April 15, 1964, by ...


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