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H.f. Philipsborn & Co. v. Suson

SEPTEMBER 26, 1973.

H.F. PHILIPSBORN & CO., PLAINTIFF-APPELLEE AND CROSS-APPELLANT,

v.

MORRIS SUSON ET AL., DEFENDANTS-APPELLANTS — (MORRIS SUSON ET AL., DEFENDANTS AND CROSS-APPELLEES, AND M. SUSON ASSOCIATES, INC. ET AL., DEFENDANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. WILBERT F. CROWLEY, Judge, presiding.

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 24, 1973.

H.F. Philipsborn & Co. (hereinafter Philipsborn) brought an action for breach of contract against Morris Suson (hereinafter Suson) and North Shore Estates, Inc. (hereinafter Estates) and for interference with its contractual rights against Suson, Prudential Insurance Company of North America (hereinafter Prudential) and Max E. Miller & Son, Inc., (hereinafter Miller). There were other parties-defendant in this action, but they were dismissed and are not involved in this appeal. This cause was tried before a jury. Verdicts were directed at the close of plaintiff's case in favor of Suson, Prudential and Miller. Verdict and judgment were entered in favor of plaintiff and against Suson and Estates in the sum of $109,760.00 and costs, and against Suson individually in the sum of $30,000.00.

On appeal Suson contends that:

1. The trial court erred in holding him personally liable on the application;

2. The trial court erred in permitting plaintiff during the trial, to amend its complaint to charge Suson with personal liability;

3. The trial court erred in its rulings on the admissibility of evidence; and

4. The trial court erred in granting plaintiff judgment on the notes.

On appeal Estates contends that:

1. The trial court erred in failing to hold that plaintiff breached its contract by failing to accept the application in writing within 60 days and by failing to procure a completion bond; and

2. The verdict and judgment are contrary to the manifest weight of the evidence.

On the cross-appeal, plaintiff contends that the trial court erred in directing verdicts for Suson, Prudential and Miller at the close of plaintiff's case.

On September 17, 1963, an application for a construction and mortgage loan was prepared by plaintiff and submitted to Suson. The application was on plaintiff's printed form with details typed in. The application provided that title was to be in the name of a "trust to be formed", which words were typed in, "or corporation to be formed", which words were added in ink. The application contained clauses concerning acceptance, completion bond and the notes in lieu of standby fee, which are discussed in detail in the opinion. The application is signed "North Shore Estates, Inc., by Morris Suson, Press". Suson executed and delivered notes totaling $30,000 to plaintiff in lieu of a standby fee. Plaintiff and Suson were unable to procure a completion bond. On November 12, 1963, Estates was incorporated in Illinois and on November 25, 1963, the Board of Directors of Estates adopted all of Suson's actions. On January 31, 1964, Suson went to Miller and filed a loan application. On March 24, 1964, Suson received the loan from Prudential. Plaintiff sent Suson mortgage documents and a note dated May 22, 1964. Suson returned the documents and the note.

• 1 Defendant Susons' first contention on appeal was that the court erred in failing to hold that the contract imposed no personal liability on him. The mortgage application, dated September 17, 1963, was signed North Shore Estates, Inc. by Morris Suson, President. The amendment to the application required a personal obligation by Suson on three $10,000 notes which were in lieu of a standby fee. The application provided in handwriting that the title was to be in a corporation to be formed. Estates was incorporated on November 12, 1963, and on November 25, 1963, Estates' Board of Directors approved and adopted Suson's acts as promoter and assumed the liabilities which resulted therefrom. Suson signed the mortgage application as the agent of a corporation to be formed. The application and other trial exhibits show that Philipsborn knew that Suson was not to be personally liable and that Estates was the corporation referred to in the application. The evidence leads us to the conclusion that Suson was ...


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