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Feinberg v. Great Atlantic & Pac. Tea Co.

DECEMBER 3, 1970.

BERNARD FEINBERG, PLAINTIFF-APPELLANT,

v.

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. BEN SCHWARTZ, Judge, presiding.

MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 15, 1971.

This is an appeal from a summary judgment for defendant in a suit in which plaintiff, the beneficiary of a land trust, seeks to recover damages for breach of a lease which he signed as agent of the trustee, contrary to the provisions of the trust agreement which provided that no beneficiary should have the authority to contract for or in the name of the trustee. The facts follow.

On October 29, 1963, plaintiff entered into an agreement with the Chicago Title and Trust Company as trustee pursuant to which he conveyed to it the real estate here involved. Under the agreement he was entitled as beneficiary to the earnings, avails and proceeds of the property. His interest therein is defined in the trust agreement as consisting solely of a power of direction to the trustee to deal with the property and to manage and control it as provided in the trust deed. The agreement also provided that the trustee would on the written direction of the beneficiary make deeds for or otherwise deal with the title to the real estate. The beneficiary had the management and control of the selling, renting and handling of the property. It also provided that no beneficiary should have any authority to contract for or in the name of the trustee or to bind the trustee personally. On the same day, October 29, 1963, on which the plaintiff entered into the trust agreement, he assigned to six universities varying percentages of all his rights, power and privileges in, to and under his beneficial interest in the trust.

On February 23, 1965, plaintiff entered into a lease with defendant for a store in a shopping center to be constructed by plaintiff. The lease was dated January 14, 1965, and was for a twelve year period. Plaintiff executed it as follows:

"Chicago Title and Trust Company * * * as Trustee under Trust Agt. Dated Oct. 29, 1963, and Known as Trust No. 46173.

By: Bernard Feinberg, Authorized Agent." (Emphasis added.)

By assignments dated February 17, 1965, the universities conveyed their beneficial interests in the trust back to the plaintiff. The assignments were sent by plaintiff to the trustee on June 18, 1965, and were received by it on June 21, 1965. On March 4, 1966, defendant notified plaintiff that it considered the lease terminated since the premises had not been completed within 90 days from December 1, 1965, that is, before March 1, 1966, as provided by the lease.

Following receipt of that notice the plaintiff brought this suit in the name of the Chicago Title and Trust Company as trustee. Defendant took depositions and then filed a motion for summary judgment based upon the following grounds:

"(1) that the lease between the trustee and A & P dated January 14, 1965 was invalid in that it was not the act of the trustee lessor, not having been executed by the trustee or by any person authorized by the trustee to execute leases on its behalf;

(2) that the lease was improperly executed by plaintiff in that he was not then nor at any time thereafter the authorized agent of the trustee;

(3) that the trustee lessor at no time ratified Bernard Feinberg's lack of authority to execute the lease;

(4) that the trustee disclaimed any interest in the lease and that no claim can be predicated upon the lease in the name of the trustee;

(5) that the plaintiff trustee was not advised prior to its deposition that the lease was made or that this cause had been commenced in its name, and that the trustee had ...


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