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Vil. of Mundelein v. Evanger

APRIL 27, 1971.

THE VILLAGE OF MUNDELEIN, PLAINTIFF-APPELLANT,

v.

ROBERT EVANGER, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Lake County; the Hon. LLOYD A. VAN DEUSEN, Judge, presiding.

MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT: This appeal arises from the trial court's denial of relief based upon the plaintiff's breach of contract and the further denial of the defendant's alleged counterclaim, also based upon a breach of contract. The plaintiff appealed and one of the defendants, Robert Evanger, cross-appealed.

Plaintiff contends that the trial court's holding was against the manifest weight of the evidence. Defendant, on his cross-appeal, contends that the trial court erred in not allowing his motion to amend the counter-claim and denial of relief prayed for therein.

A bench trial was had upon the pleadings and a stipulation of facts.

In February, 1965, the plaintiff and defendant entered into an oral agreement whereby the plaintiff would approve a proposed plat of subdivision contingent upon the defendant's installation of certain "necessary" sewer and water improvements to all lots prior to their sale.

The subdivision consists of eight lots. Lots 1 and 2 face to the north and front on Charlotte Place. Lots 4 and 5 face to the west and front on Jeanette Place. Lot 3 is the corner lot and Jeanette and Charlotte intersect at its front. Lots 6 and 7 are south of 1 and 2 and east of 4 and 5. These two lots front on a proposed Walker Place cul de sac. Lot 8 consists of the undivided portion of the subdivision. The engineer's drawings show that sewer and water were to be provided to Lots 4, 5, 6 and 7, from the Walker Place cul de sac. The defendant sold Lot 4. At the time of sale, plaintiff, defendant and the purchasers, mistakenly believed that both water and sewer in Jeanette Place continued to a point south of Lot 4. Relying upon this mistaken belief, defendant reduced the purchase price of the lot at the insistence of the purchasers who desired to tap into the services located in Jeanette Place, rather than from the cul de sac. The Village, under the same mistaken belief, issued its building permit without requiring the cul de sac improvements to be made. After the purchaser's house was under roof, it was first discovered that the sewer extended just to the middle of Lot 3, which was some 100 feet north of Lot 4. At this time, the purchasers informed the Village of the situation.

The record next discloses that, on September 12, 1967, the Village served notice upon the defendant to install all improvements as soon as possible. Seventeen days later, the Village attorney transmitted a letter to the defendant informing him that the Village had extended the sewer line in Jeanette Place to a point beyond Lot 4 to the front of Lot 5, that the cost of the extension was $1500 and that the defendant was to pay said amount within 10 days. The defendant did not do so. Subsequently, the Village paid its contractor for the extended sewer. The defendant requested the plaintiff to issue building permits so that the cul de sac improvements could be installed to service Lots 6 and 7. The plaintiff refused to issue the permits and continued to demand the payment of $1500.

The Village brought suit for the $1500 expended, for punitive damages in the sum of $10,000 and other relief not raised in this appeal.

The defendant's answer contained certain admissions, denials, and affirmative statements and prayed:

"Wherefore, this defendant asks that plaintiff be ordered to allow the public improvements for Lot 6 and 7 in said subdivision to be made forthwith; and that the plaintiff be denied any other relief."

This was followed by an alleged counterclaim which states:

"1. Due to plaintiff's action in refusing to allow the public improvements to be made to Lots 6 and 7 as alleged in the foregoing answer, the costs thereof have now risen and it will not cost more than $2,000 extra to currently complete said improvements.

WHEREFORE, this defendant asks for judgment against plaintiff for $2,000."

Prior to the trial, defendant moved to amend the above by adding the following:

"2. Plaintiff's refusal to allow defendant to make the necessary public improvements for the Walker Ct. Cul De ...


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