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Anderson v. Cosmopolitan Nat. Bank





APPEAL from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. NICHOLAS J. BUA, Judge, presiding.


Rehearing denied September 27, 1973.

This action was originally brought in the circuit court of Cook County on behalf of the plaintiff, Robert Lee Anderson, a minor, by his mother and next friend, Louise Anderson, against the Cosmopolitan National Bank of Chicago, Realty Service Co., Jesse Smith and Mable L. Smith, to recover damages for personal injuries allegedly suffered by the plaintiff. Thereafter leave was granted to file an amended complaint and to add William H. Suchier and Mary Murphy Suchier as defendants. Subsequently, the trial court granted the Suchiers' motion for summary judgment, dismissed the action as to them and, acting pursuant to Supreme Court Rule 304(a), found that there was no just reason for delaying enforcement or appeal. The plaintiff appealed from the order and the appellate court reversed. (Anderson v. Cosmopolitan Nat'l Bank of Chicago (Suchier)(1971), 132 Ill. App.2d 307.) We allowed the Suchiers' petition for leave to appeal.

The plaintiff's amended complaint, which was further amended in the appellate court under Supreme Court Rule 362, alleged that on May 7, 1963, the plaintiff, then three years old, resided with his mother in an apartment building located at 120 South Wood Street in Chicago. It further alleged that on that date the plaintiff was injured while playing in the second-floor hallway of the building when he fell through a railing from which some slats were missing.

It is undisputed that the Suchiers became the owners of the Wood Street property on March 25, 1963, when title was conveyed from Walter and Mildred Gainer to a trust of which William H. Suchier and Mary Murphy Suchier, his wife, as joint tenants, were the beneficiaries. On May 1, 1963, the Suchiers entered into an installment contract for the sale of the property for $3000 to Jessie and Mable Smith. One hundred dollars was paid down and the balance was to be paid in installments of $100 per month. No interest was to be charged if the payments were made on the first day of each month. Under the contract title was not to be conveyed until all the installment payments were made, and the seller retained the right to make repairs on the property if the purchaser did not do so. The contract provided that the buyer would keep the premises insured, and that if he did not do so the seller could, and add the amount paid for insurance to the purchase price. If the buyer failed to make an installment payment the seller could, at his option, consider the contract forfeited, retain the payments made up to that time and retake possession of the property. The Smiths took possession on May 1, 1963.

In an affidavit filed in support of her motion in the appellate court for leave to file a second amended complaint, the plaintiff's mother stated:

"3. That on April 1, 1963, I rented the second floor apartment at 120 S. Wood, Chicago, Illinois, from Jessie Smith and Mable Smith, and paid $68 a month.

4. That I moved into the apartment and at that time stair railings were missing and I told the lady I was renting from, who was Mrs. Smith, to fix them and she never did.

5. That the railings were rotten and loose and I could tell that they were in bad condition and had been in bad condition for a long time before I moved in."

The plaintiff's theory is that the defect existed prior to the date of the installment contract sale to the Smiths and that the Suchiers knew or should have known of it, and were therefore negligent in failing to keep the property in repair.

The generally accepted rule in this country is that an ordinary vendor of real property is not liable for personal injuries which are sustained subsequent to his transfer of possession and control. (Maisenbach v. Buckner (1971), 133 Ill. App.2d 53, 272 N.E.2d 851, 854; Conway v. Epstein (1964), 49 Ill. App.2d 290; Annot., 48 A.L.R.3d 1027, 1035; Restatement 2d, Torts sec. 352.) The trial court applied this rule, and dismissed the action as to the vendors, the Suchiers.

The general rule, however, is subject to an established exception when the vendor actively conceals or fails to reveal a dangerous condition to the vendee. In this situation the liability of the vendor continues until the vendee discovers the defective condition and has an opportunity to remedy it. (Restatement 2d, Torts sec. 353.) In reversing the judgment of the circuit court, the appellate court relied upon the New York case of Farragher v. City of New York (1966), 26 App. Div. 2d 494, 275 N.Y.S.2d 542, aff'd (1968), 21 N.Y.2d 756, 235 N.E.2d 218, which extended this exception to a defect which was known to the vendee, and held that even in the case of a known defect the vendor's liability continues until a sufficient time has elapsed to permit the vendee to remedy it. And because the appellate court was of the opinion that the second amended complaint "alleges facts from which a jury could infer that the Smiths as vendees did not have a reasonable opportunity to repair the defective railing," the judgment was reversed and the case was remanded "to permit the trial court to resolve the factual issues presented."

The New York case involved an unusual situation. The defect was the absence of an automatic sprinkler system. It was undisputed that it would take 90 days to install such a system and the accident occurred when the vendee had been in possession less than 90 days. The position there taken by the New York court does not appear to have found acceptance elsewhere, and we are not persuaded that it should be applied generally to exonerate a vendee from liability for a defective condition of which he is aware. Even if we were to apply this exception to the present case, we could not agree with the appellate court's conclusion. Whatever may have been the relation of the Smiths to the property between April 1 and May 1, the interval between May 1, when they took possession, and May 7, when the accident occurred could not reasonably be found inadequate for the simple repairs here involved.

The plaintiff does not urge us to affirm the judgment of the appellate court for the reasons stated in the opinion of that court. Rather the argument is that those who sell real estate upon installment contracts should be subjected to a different and more strict liability than is imposed upon other vendors. Specifically, it is urged that "the `contract seller' should be treated as an owner or lessor" because of the significant rights that he retains under his contract. These rights usually include the right to enter and make repairs and to charge the cost to the buyer. The seller has the right to insure if the buyer fails to do so and, in the event of a default on the part of the buyer, has a simple remedy by which he may regain possession. We are not persuaded by this argument. Substantially similar arguments can be advanced with respect to mortgagees, who have the same or substantially similar rights. That the device of the installment contract as a ...

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