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Furla Studios, Inc. v. Gillen

JUNE 18, 1971.

FURLA STUDIOS, INC., PLAINTIFF-APPELLANT,

v.

KATHRYN GILLEN, BY HER AGENT, ALFRED M. CLARY, DEFENDANT-APPELLEE — (WALTER PREIBISCH ET AL., INTERVENORS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. WALTER P. DAHL, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 4, 1971.

Plaintiff appeals from a judgment dismissing its complaint with prejudice and from a denial of its motion to vacate that judgment. On appeal plaintiff contends that the trial court erred in dismissing its cause of action and in failing to permit the filing of an amended complaint.

On August 2, 1968, plaintiff filed a complaint for specific performance alleging in part: (1) that on April 14, 1965, Kathryn Gillen, by her agent Alfred M. Clary, (hereinafter "defendant") as lessor, entered into a lease with plaintiff; (2) that paragraph twenty-five of the lease stated that defendant agreed not to sell the leased premises during the term of the lease to a third party without first offering to sell the premises to plaintiff under the same terms and conditions as defendant would sell to a third party or nominee of the third party; (3) that on June 28, 1968, defendant notified plaintiff that she had received an offer to purchase the leased premises from Walter Preibisch and Eugene M. Haegele for $71,000, including a broker's commission to EMH Realty Incorporated; (4) that the terms under which defendant agreed to sell to a third party were, inter alia, a net price to defendant of $66,740; (5) that plaintiff had made previous offers to purchase the leased premises which defendant refused; (6) that since July 3, 1968, when plaintiff exercised its option to purchase, it has been ready, willing and able to complete the transaction under the same terms and conditions as defendant agreed to sell to said third party; and (7) that defendant's refusal to accept a net sales price of $66,750 constitutes a breach of contract whereby specific performance should be granted.

On September 5, 1968, defendant filed a motion to strike plaintiff's complaint and dismiss its cause of action. Thereafter Walter Preibisch and Eugene M. Haegele (hereinafter "Intervenors") filed a motion to intervene seeking to protect their rights as contract purchasers of the leased property. Plaintiff filed objections to these motions.

On January 21, 1969, intervenors' motion was granted and they were also granted leave to file instanter a motion to dismiss plaintiff's complaint.

On February 13, 1969, defendant filed an amended motion to dismiss plaintiff's complaint which alleged in part: (1) that on June 5, 1968, defendant notified plaintiff that:

"* * * Kathryn Gillen, owner of the premises at 2272-74 West Leland Avenue and 4701-15 North Lincoln Avenue, Chicago, Illinois, has entered into an agreement with Walter Preibisch and Eugene M. Haegele for the sale of said premises. The store which you occupy as Lessee at 4703 North Lincoln Avenue, Chicago, Illinois, is a part of said premises. Paragraph Twenty-fifth of the lease for said store, dated April 14, 1965, provides as follows:

As a condition for Lessee entering into this agreement, Lessor agrees not to sell the building located at 4703 N. Lincoln Avenue, of which the demised premises are a part, during the terms of this lease or any subsequent renewals, to a Third Party or nominee of a Third Party, without first offering to sell building to Lessee under same terms and conditions as Lessor would sell to Third Party or nominee of Third Party.

I enclose here with a photographic copy of the contract between Kathryn Gillen, Owner, and the purchasers, which provides that the sale price is $71,000.00, with a cash payment of $20,000.00 and that the purchasers will execute their mortgage for the balance of $51,000.00. Said contract further provides for the regular Chicago Real Estate Board commission to be paid to the named broker who arranged for said sale.

In accordance with the terms of the option given to you by your present lease, I hereby offer to sell said premises to you under the same terms and conditions which are set forth in said contract of sale. Please advise me as soon as possible if you decide to exercise your option. This offer to you will expire and terminate at 12:00 Noon on July 10, 1968. If you do not advise me in writing that you are accepting this offer on or before said date and time I shall assume that you do not desire to exercise the aforesaid option."

(2) that plaintiff's letter which allegedly exercised its option to purchase stated in part:

"Pursuant to the provisions of a certain lease dated October 14, 1965, (paragraph 25) we acknowledge said letter as a bona-fide offer to Mr. Furla based on a bona fide offer received from Preibisch and Haegele. My client, Mr. Furla accepts the offer on the same terms and conditions.

This is to further confirm our understanding that the net amount due the sellers will be the same pursuant to our offer since Mr. Furla's offer does not involve the necessity of paying a real estate broker's commission to any broker. Therefore, please accept this communication as an acceptance of the seller's ...


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