APPEAL from the Circuit Court of Cook County; the Hon. THOMAS
W. BARRETT, Judge, presiding.
MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 6, 1972.
This is an appeal from a judgment of the Circuit Court of Cook County entered after a jury verdict for the defendants. The issues on appeal are whether the seller's inability or unwillingness to comply with certain subdivision statutes and ordinances constituted a breach of contract which entitled plaintiffs to a return of their earnest money without tendering the balance of the purchase price, and whether the court erred by refusing to admit evidence of the seller's noncompliance with those statutes and ordinances.
On February 20, 1969, the defendant, Drovers National Bank of Chicago, as trustee, held title to a tract of vacant land 662.2 feet long and 209.79 feet wide, located in the Village of Olympia Fields, Illinois. The beneficiary of the trust was the wife of the defendant, Jay Jones, a real estate broker. On that day the plaintiffs entered into a contract in writing with the defendant bank to buy the east 209 feet of the tract for the sum of $25,000. An earnest money deposit of $5,000 was paid by the plaintiffs to Jay Jones. The contract provided that the seller agreed to convey a "recordable" trustees deed to the buyer.
The parcel had never been subdivided and was described by metes and bounds. The plaintiffs proposed to build a single family residence on the land, and the defendant Jones proposed to build a single family residence on the remainder of the tract. The total tract bordered on Western Avenue, and access from the retained portion could be obtained only over the parcel to be sold to the plaintiffs. A rider attached to the contract provided that the buyers agreed to construct a roadway for ingress and egress for adjoining properties on the north 16 feet of the property set aside for a roadway.
The plaintiffs obtained financing from the Matteson-Richton Bank, which refused to provide the money unless a subdivision plat was filed. After the defendant was informed of this he made some attempts to process a subdivision, but did not complete it. Jay Jones testified as follows:
"Q. Did you ever have any discussion with Mr. Burke [President of the Village of Olympia Fields] with reference to your desire to avoid certain portions of the subdivision control ordinance?
Q. Will you tell us what that conversation was?
A. There were two. One was a telephone conversation, and another was in the meeting at the Planning Commission. Everyone else on the Planning Commission agreed with the drawing that I had given, stating that I would not have to put in a road because the path of the road would have destroyed a number of large, old trees. He felt that a road should be put there.
Q. When you say he, you mean Mr. Burke?
A. I disagreed. The conclusion of the meeting was for me to come back with another drawing, and they would then make a final decision.
Q. Did you come back with such a drawing?
Jones also testified the reason he did not complete the plans for the subdivision was that the Maroses informed him they were no longer interested in acquiring the property.
The closing date of March 31, 1969, passed without the sale being consummated. Mrs. Larsen, the real estate broker who had negotiated the sale, received a letter dated April 23, 1969, from the Village Clerk of Olympia Fields in response to her inquiry. The letter stated that the parcel to be sold was a "buildable lot for a single family residence" but that, "This letter applies only if a subdivision plat has been filed * * *." On May 8, 1969, plaintiffs ...