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Krueger & Ashe, Inc. v. Ende

DECEMBER 15, 1971.

KRUEGER & ASHE, INC., PLAINTIFF-APPELLANT,

v.

HARRY G. ENDE, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Kane County; the Hon. JOHN S. PETERSEN, Judge, presiding.

MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT:

The plaintiff appeals from an order of the circuit court of Kane County entered November 27, 1970, which dismissed their complaint on grounds of laches pursuant to a motion of the defendants. The record consists entirely of the pleadings, affidavits and exhibits submitted to the trial court.

The complaint, filed April 21, 1970, alleged that the parties entered into a written "offer to purchase" in August, 1964 whereby the plaintiff agreed to purchase a single family home in Carpentersville from the defendants for a price equal to the outstanding mortgage balance owed Percy Wilson Mortgage and Finance Corporation as of September 1, 1964. Although the offer was never reduced to a formal written contract, the plaintiff took possession of the property, collected rents, paid the mortgage, taxes and insurance and kept the property in good repair, all in reliance on the agreement with the defendants. Nonetheless, the complaint continues, the defendants refused to furnish a deed for the property as previously agreed and the plaintiff asked the court to order the defendants to deliver their deed, or, in the alternative, appoint a magistrate to execute and deliver a deed on their behalf. A hand written document captioned "offer to purchase" is attached to the complaint and appears as follows:

"Subject to the approval of our attorney, Richard C. McCarthy, as to matters of title and terms of a contract, hereafter to be drawn, I hereby offer to purchase the following described real estate:

One family dwelling located at 956 Berkely, Carpentersville, Ill. by assuming mortgage by Percy Wilson Mtge & Finance Corp. as of Sept. 1, 1964. The escrow account held by them to be assigned to Krueger & Asche, Inc. The fire insurance policy held by them to be assigned to Krueger & Asche, Inc.

The closing date to be September 1, 1964. I hereby tender $100.00 to be held by Seller as evidence of my good faith to be applied against purchase price."

The document was signed by the defendants and acknowledges receipt of the $100.00 and acceptance of the offer.

The defendants' motion to dismiss and supporting affidavit recites that prior to September 1, 1964, they leased the home to William Louis Brytung who has been in possession of it ever since and that the mortgage payments (including tax and insurance) were actually paid from the rentals received from him. The motion and affidavit also state that the sale to the plaintiff was not consummated on September 1, 1964, nor did the plaintiff or his attorney ever indicate approval of the "offer" or take any other affirmative action to complete the transaction until more than 5 years had elapsed.

Counter affidavits from both Richard Ashe and Donald Krueger were filed wherein they aver that Brytung was in actuality their tenant and that they had entered into leases with him, collected the rents and made all necessary payments on the property. They further stated that they had made frequent demands on the defendants for a deed.

Brytung, apparently a man of rare accommodation, furnished affidavits to both parties that does little to clear up the confusion. In his affidavit given to the plaintiff, Brytung states that Harry Ende first tried to sell the home but then leased it to him for two years under a written lease dated August 17, 1964. To his "best recollection", Brytung remembered that Ende then introduced Ashe to him as the new purchaser and directed him to make all future rent payments to the plaintiff.

In his second affidavit, Brytung said that he did not know either Ashe or Krueger prior to his leasing the property from Ende and that although Ende directed him to pay the rent to them he never offered an explanation of their relationship to the property. In any event, Brytung entered into a new lease in September, 1964 and regular renewals thereafter directly with Krueger and Ashe and made all rental payments to them until November, 1969 after which, at his attorney's direction, he made his payments to Percy Wilson. There is nothing to indicate that Ende was ever aware of any lease between Brytung and Krueger and Ashe.

Ende filed an additional affidavit wherein he denied that the plaintiffs made frequent requests for a deed as they had alleged and attached the following letter dated September 1, 1965 that he sent to Ashe.

"Mr. Richard Ashe Carpentersville-Dundee Agency 111 Oregon ...


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