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Pescaglia v. Gianessi

FEBRUARY 4, 1973.

SINCERO PESCAGLIA ET AL., PLAINTIFFS-APPELLANTS,

v.

ORFEO GIANESSI ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Tazewell County; the Hon. ROBERT E. HUNT, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Plaintiffs-Appellants, Sincero Pascaglia and Burgess Childress, brought this action in the Circuit Court of Tazewell County against Defendants-Appellees, Orfeo Gianessi and Lena Gianessi, seeking specific performance of a real-estate contract for the sale of property located near North Pekin, Illinois. After hearing the court determined that plaintiffs were not entitled to specific performance of the contract, dismissed the complaint for want of equity and this appeal follows.

On April 6, 1970, defendant requested his attorney, Harold J. Rust, to prepare a contract for the sale of real property located in North Pekin, Illinois, to plaintiff, Pescaglia. On April 16, 1970, the contract so prepared was signed by the parties. Pescaglia at that time gave defendant a check for $1,000, as a "good faith payment".

The agreement contemplated the sale of 106.50 acres of land at $117,150. The agreement further contemplated that plaintiff intended to use part of this property for a trailer court and was to petition the Village of North Pekin for the necessary annexation and rezoning in furtherance of that plan.

The principal source of this controversy are Paragraphs 4, 5 and 6 of the contract. In substance Paragraph 4 of the contract provides for annexation of the premises to the Village of North Pekin, Tazewell County, Illinois, and, Paragraph 5 provides for the rezoning of said premises by the appropriate agency of the Village of North Pekin to permit the construction of a residential development and the construction of a trailer park. Paragraph 6 provides:

"At the time said annexation and rezoning have been completed, party of the second part agrees to pay parties of the first part an additional sum of $10,000 on the principal of this contract; provided, however, that if said annexation and rezoning have not been completed within ____ days after the execution of this agreement, then party of the second part may declare this agreement null and void, and thereupon, parties of the first part shall return said down payment of $1,000.00 to party of the second part."

The blank appearing before the word "days" in the preceding provision was not filled in either by the draftsmen of the document or by the parties at the time of execution.

Plaintiff Pescaglia proceeded immediately to petition the Village of North Pekin, defendants joining in such petition, for annexation and rezoning of the property involved. On May 25, 1970, plaintiff asked the North Pekin Village Board to delay proceedings on the petitions.

On February 8, 1971, plaintiff sent a letter to defendant stating that although the zoning had not been accomplished, the plaintiff was waiving that provision of the agreement, as was his option, and was enclosing a certified check for $10,000 in accordance with the agreement. Defendant held the check until March 11, 1971, at which time it was mailed back to plaintiff.

This action was commenced in June, 1971, and the plaintiff sought to require the defendant seller to specifically perform his obligations under the contract. Judgment of the trial court was in favor of the defendant.

In seeking to reverse the action of the trial court plaintiff argues generally that the evidence is insufficient to defeat his right to require specific performance of the contract. In particular the plaintiff argues, one; the contract was written by defendant's attorney and for that reason any ambiguity should, as a matter of law, be construed against defendant. Two; the time at which tender was made was not unreasonable in light of the evidence. Three; any increase in value of the real property involved does not defeat plaintiff's right to specific performance and four, there has been no forfeiture of the contract in accordance with its express terms.

In support of the actions of the trial court and in opposition to the contentions of the appellant, defendant argues generally that the right to specific performance is not absolute, but rests in the sound discretion of the court. According to established principles of equity, and in the light of all the facts and circumstances of this case, the court did not abuse its discretion in refusing to grant plaintiff's request for specific performance. In particular defendant argues, one; a plaintiff who later abandons, rescinds, breaches or otherwise terminates a contract and who fails to proceed with diligence, may not thereafter secure its specific performance. Two; under the circumstances of this case the matter of whose attorney may have prepared the contract is immaterial and three; the forfeiture provisions of the contract were inapplicable.

• 1 The initial controversy between the parties arises from the application of Paragraph 6 of the contract. The time for compliance with this provision was left blank. The reasons for and the consequences of the failure of the written instrument to specify a date for performance constitute a significant portion of the testimony and are interrelated with the principal issue of the case namely whether plaintiff did or did not perform as required by the contract. It should be noted that plaintiff argues on this appeal that the evidence conclusively establishes his right to specific performance. Whether a contract has been performed according to its terms is ordinarily an issue of fact. However plaintiff argues that due performance is established as a conclusive fact because ambiguities, frailties and inadequacies of the contract must be construed against the defendant and additionally the failure of the defendant to serve a forfeiture notice demonstrates that the contract was still in force at the time performance was tendered by plaintiff.

• 2 Plaintiff has argued that because the final draft of the contract was prepared by Rust as attorney for the defendant, ambiguities in the instrument should be construed most strongly against the defendant. (Berman Leasing Co. v. Chicago Terminal Clearance, 88 Ill. App.2d 43, 232 N.E.2d 180, and City of Chicago v. Carpenter, 95 Ill. App.2d 81, 238 N.E.2d 70.) As observed in Donahue v. Rockford Showcase & Fixture Co., 87 Ill. App.2d 47, 232 N.E.2d 278, "The contract will be construed most strongly against the ...


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