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Nemeroff v. Nat. Boulevard Bk. of Chicago

NOVEMBER 17, 1970.

VICTOR NEMEROFF ET AL., PLAINTIFFS-APPELLANTS,

v.

NATIONAL BOULEVARD BANK OF CHICAGO, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding.

MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the Circuit Court of Cook County dismissing plaintiffs' complaint for declaratory judgment pursuant to defendant's motion and entering judgment thereon.

Victor Nemeroff and M.H. Jacobs filed an action for declaratory judgment in the Circuit Court of Cook County seeking to have certain notes executed by them and delivered to defendant National Boulevard Bank declared paid and for other relief. Defendant filed a motion to dismiss under section 48(1)(i) of the Civil Practice Act [Ill. Rev. Stat., ch. 110, par. 48(1)(i)]. In support of the motion defendant asserted that the oral agreement alleged in Count I of the complaint was inadmissible as varying the terms of the notes executed by plaintiffs. Defendant also asserted that the claims asserted in Counts II and III of the complaint were barred by the terms of written agreements between plaintiffs and defendant.

The sole issue presented is whether the trial court erred in dismissing the complaint.

Count I of the complaint alleged the following facts. On March 13, 1967, each of the plaintiffs became participants in a loan made by defendant to Tel-A-Sign, Inc. The principal amount of the loan was $740,000.00 and each of the plaintiffs' participation was to the extent of $50,000.00. Loan participation certificates were executed by the defendant and copies thereof were attached to the complaint.

Subsequent to March 13, 1967, Tel-A-Sign, Inc. required additional funds in consequence of which defendant induced plaintiffs to make loans from it and permit the funds loaned to be credited to the account of Tel-A-Sign, Inc. Defendant orally agreed to apply the first monies received in payment of the secured loan to the indebtedness of defendant. Pursuant to this agreement the following amounts were credited to the account of Tel-A-Sign, Inc. and charged to the plaintiffs' liability record by defendant.

Credited to the account of Tel-A-Sign, Inc.

March 29, 1967 — $21,665.85 March 30, 1967 — $19,338.23 March 31, 1967 — $19,844.70

Charged to plaintiffs' liability record

March 31, 1967 — $19,388.23 March 31, 1967 — $21,655.85 April 3, 1967 — $19,844.70

Count I then alleges a telephone conversation between plaintiff Nemeroff and an unnamed officer of defendant on April 3, 1967, the tenor of which was that defendant requested plaintiffs to execute notes to defendant for the funds advanced to Tel-A-Sign, Inc. During the course of the conversation the officer stated to Nemeroff that collections made by defendant would be applied on a last in first out basis, to the end that the indebtedness represented by the notes plaintiffs were requested to execute would be paid before any monies would be applied on the secured loan. Subsequently plaintiffs executed three demand notes bearing the following dates and amounts:

March 31, 1967 — $19,844.70 March 30, 1967 — $19,388.23 March 29, 1967 — $21,665.85

Paragraph twelve of Count I of the complaint contains the allegation that subsequent to April 3, 1967, Tel-A-Sign, Inc. required additional funds and plaintiffs, relying on the oral agreement that collections from Tel-A-Sign, Inc. would be applied on a last in first out basis, executed three ...


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